Converse v. Elkhart Gen. Hosp., Inc., Court of Appeals Case No. 18A-CT-1658

• Decision Date: 08 March 2019
• Docket Number: Court of Appeals Case No. 18A-CT-1658
• Citation: 120 N.E.3d 621
• Parties: Michelle CONVERSE, Appellant-Plaintiff, v. ELKHART GENERAL HOSPITAL, INC., Appellee-Defendant.
• Court: Indiana Appellate Court

120 N.E.3d 621

Michelle CONVERSE, Appellant-Plaintiff,

v.ELKHART GENERAL HOSPITAL, INC., Appellee-Defendant.

Court of Appeals Case No. 18A-CT-1658

Court of Appeals of Indiana.

FILED March 8, 2019

Attorneys for Appellant: Daniel H. Pfeifer, James P. Barth, Pfeifer, Morgan & Stesiak, South Bend, Indiana

Attorneys for Appellee: Edward L. Murphy, Jr., Lauren R. Deitrich, Rothberg Logan & Warsco LLP, Fort Wayne, Indiana

Robb, Judge.

Case Summary and Issue

[1] Michelle Converse appeals the trial court's grant of summary judgment in favor of Elkhart General Hospital, Inc. on her claim of negligence. Converse presents only one issue for our review, whether the trial court erred when it granted summary judgment in favor of Elkhart General. Concluding the trial court erred in granting summary judgment in favor of Elkhart General, we reverse and remand.

Facts and Procedural History

[2] In early 2012, Converse was an employee of American Nursing Care ("ANC"), which conducted its home health care business from a building owned by Elkhart General. ANC had leased the building since July 1, 2011, and Converse went to the location two to three times per week to pick up or drop off paperwork and to attend case conferences before dismissing patients. ANC instructed all its employees to use the side door to enter and exit the building.

[3] After one such conference on April 10, 2012, Converse walked from the side door to her car in the parking lot around 9:25 a.m. Converse was returning to the building on the clear, sunny morning when she spotted another nurse, Dale Fish, with whom she needed to speak. Converse yelled Fish's name and attempted to run after him but fell on the way to Fish's car. Converse claims she lost her balance when she stepped on a landscaping rock that was loose on the sidewalk, hit the raised concrete area adjacent to the sidewalk, stepped on another rock, and fell. Converse injured her arm in the fall and required several surgeries. Converse claimed that she did not see the rock prior to her fall and had never noticed any rocks on the sidewalk before but that she observed scattered landscaping rocks on the sidewalk "here and there" after the fall. Appellant's Appendix, Volume 2 at 134.

[4] On July 22, 2013, Converse filed a complaint for damages against Elkhart General, alleging negligence on the basis of premises liability. Elkhart General moved for summary judgment on March 5, 2018. The trial court heard arguments on May 14 and granted summary judgment in favor of Elkhart General on June 21. Converse now appeals.

Discussion and Decision

I. Standard of Review

[5] We review a summary judgment order with the same standard applied by the trial court. City of Lawrence Util. Serv. Bd. v. Curry , 68 N.E.3d 581, 585 (Ind. 2017). Summary judgment is appropriate only when "the designated evidentiary matter shows that there is no 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). In the summary judgment context, we are not bound by the trial court's specific findings of fact and conclusions of law. Rice v. Strunk , 670 N.E.2d 1280, 1283 (Ind. 1996). The trial court's findings and conclusions merely aid our review by providing us with a statement of reasons for the trial court's actions. Id.

[6] Moreover, our review is limited to those facts designated to the trial court, T.R. 56(H), and we construe all facts and reasonable inferences drawn from those facts in favor of the non-moving party, Meredith v. Pence , 984 N.E.2d 1213, 1218 (Ind. 2013). On appeal, the non-moving party carries the burden of persuading us the grant of summary judgment was erroneous. Hughley v. State , 15 N.E.3d 1000, 1003 (Ind. 2014). A grant of summary judgment will be affirmed if it is sustainable upon any theory supported by the designated evidence. Miller v. Danz , 36 N.E.3d 455, 456 (Ind. 2015).

II. Premises Liability

[7] To prevail on a claim of negligence, Converse must establish: (1) Elkhart General owed a duty to Converse; (2) Elkhart General breached that duty by allowing its conduct to fall below the applicable standard of care; and (3) Elkhart General's breach of duty proximately caused a compensable injury to Converse. Rhodes v. Wright , 805 N.E.2d 382, 385 (Ind. 2004).

[8] Before proceeding to the merits of the parties' arguments, however, we pause to emphasize Indiana's unique summary judgment standard. Contrary to the federal standard which permits the moving party to merely show the party carrying the burden of proof lacks evidence on a necessary element, Indiana law requires the moving party to "affirmatively negate an opponent's claim." Hughley , 15 N.E.3d at 1003 (quotation omitted). Or, to put it more simply, Indiana law requires a movant to prove their opponent would lose, rather than simply showing their opponent is unlikely to win. If, and only if, the movant sustains this burden does the burden shift to the opponent to set forth specific facts showing that there is a genuine issue of material fact. Markley Enters., Inc. v. Grover , 716 N.E.2d 559, 564 (Ind. Ct. App. 1999). If the movant fails in their initial burden or the non-movant successfully designates evidence establishing a genuine issue of material fact, summary judgment must be denied. Hughley , 15 N.E.3d at 1004 (noting "Indiana consciously errs on the side of letting marginal cases proceed to trial on the merits, rather than risk short-circuiting meritorious claims.") And, with this "more onerous burden[,]" id. at 1003, in mind, we turn to the parties' arguments.

[9] Converse's status at the time of the accident was an invitee. Under Indiana premises liability law, a landowner owes the highest duty to an invitee: the duty to exercise reasonable care for his protection while he is on the landowner's premises. Burrell v. Meads , 569 N.E.2d 637, 639-40 (Ind. 1991). This duty extends to keeping a parking lot safe and providing a safe and suitable means of ingress and egress. Vernon v. Kroger Co. , 712 N.E.2d 976, 979 (Ind. 1999).

[10] "When a physical injury occurs as a result of a condition on the land, the three elements described in Restatement (Second) of Torts Section 343, accurately describe the landowner-invitee duty." Rogers v. Martin , 63 N.E.3d 316, 322-323 (Ind. 2016). Section 343 provides:

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.

A. Unreasonable Risk of Harm

[11] Applying Section 343 to the facts presented here, the trial court concluded Converse failed to designate evidence that the landscaping rocks on the sidewalk presented an unreasonable risk of harm. See Appealed Order at 6, ¶ 19. In light of our more onerous summary judgment standard, however, we must disagree.

[12] On summary judgment, Elkhart General designated the following evidence from Converse's testimony:

(1) Converse admits she normally looks where she is walking;(2) before the incident, on a clear day, she never saw the rock;

(3) after the fall she saw some scattered rocks on the sidewalk and similar landscaping rocks adjacent to the sidewalk; and

(4) she failed to take basic safety measures that are appropriate in just about any situation, such as looking where you're walking.

Appellant's App., Vol. 2 at 49. Elkhart General then argued these statements "preclude any reasonable inference that the rock posed an ‘unreasonable’ danger."Id. But, rather than affirmatively negating Converse's claim and demonstrating that no genuine issue of material fact remained, Elkhart General's designated evidence actually highlighted several disputes of fact on its face, namely: whether Converse was looking where she was walking at the time of her fall and whether the landscaping rocks posed an unreasonable danger even to those exercising basic safety measures.

[13] Regardless, even if we were to assume this evidence shifted the burden to Converse to designate evidence that the condition posed an unreasonable risk of harm, Elkhart General was still not entitled to summary judgment. A condition poses an unreasonable risk of harm when there is a "sufficient probability of a harmful event occurring that a reasonably prudent person would have foreseen it or some similar event as likely to happen." Cty of Cameron v. Brown , 80 S.W.3d 549, 556 (Tex. 2002). And, in response to Elkhart General's motion, Converse designated evidence that Elkhart General decorated the area next to the sidewalk with rocks of a similar color as the sidewalk and that Elkhart General failed to install a border or barrier to keep the rocks from littering the sidewalk. Converse then slipped and fell on a rock that she did not see, she suspects, because the color blended together. This evidence was sufficient, even if minimally so, to present a question of fact as to whether Elkhart General knew or should have known that if the rocks were to litter the sidewalk, they would create an unreasonable risk of harm. Moreover, because of the similarity in color, this evidence also presents a question of whether Elkhart General should have expected invitees to fail to discover the danger or protect themselves from it. See Rhodes , 805 N.E.2d at 387.

[14] Elkhart General could have designated evidence in the form of an affidavit, expert opinion, or other evidence that established the landscaping rocks did not pose an unreasonable risk of harm. However, because it failed to do so, the burden never shifted to Converse, and the trial court therefore erred in granting summary judgment.

B. Actual or Constructive Knowledge

[15] Next, Elkhart General...