Estate of Short v. Brookville Crossing 4060 LLC

• Decision Date: 31 July 2012
• Docket Number: No. 49A02–1112–CT–1128.,49A02–1112–CT–1128.
• Citation: 972 N.E.2d 897
• Court: Indiana Appellate Court
• Parties: The ESTATE OF K. David SHORT by Judith Y. SHORT, Personal Representative, Appellant–Plaintiff, v. BROOKVILLE CROSSING 4060 LLC d/b/a Baymont Inns & Suites and MPH Hotels, Inc. d/b/a Baymont Inns & Suites, Appellees–Defendants.

972 N.E.2d 897

The ESTATE OF K. David SHORT by Judith Y. SHORT, Personal Representative, Appellant–Plaintiff,

v.BROOKVILLE CROSSING 4060 LLC d/b/a Baymont Inns & Suites and MPH Hotels, Inc. d/b/a Baymont Inns & Suites, Appellees–Defendants.

No. 49A02–1112–CT–1128.

Court of Appeals of Indiana.

July 31, 2012.

J. David Hollingsworth, Alexander P. Pinegar, Church, Church, Hittle & Antrim, Fishers, IN, Attorneys for Appellant.

Richard R. Skiles, A. Kristine Lindley, Skiles Detrude, Indianapolis, IN, Attorneys for Appellees.

OPINION

BROWN, Judge.

Judith Short, as personal representative of the estate of David Short (the “Estate”), appeals the trial court's grant of summary judgment in favor of Brookville Crossing 4060 LLC d/b/a Baymont Inns & Suites and MPH Hotels, Inc. d/b/a Baymont Inns & Suites (“Baymont”). The Estate raises five issues which we revise and restate as whether the court erred in granting Baymont's motion for summary judgment. We affirm.

The relevant facts as designated by the parties follow. On the evening of January 3, 2009, at around 10:20 p.m., David Short checked into the Baymont Inn & Suites in Indianapolis, Indiana (the “Hotel”) with front desk clerk Laura Sentman. During check in, Short did not act peculiar in any way.

That evening and into the morning of January 4, 2009, between the hours of 11 p.m. and 7 a.m., night auditor Seth Devine was the only Baymont employee on duty. Devine was aware that the temperature that evening was below freezing. At around 11:15 p.m., Devine received a call from a guest at the Hotel complaining of noise coming from Short's room, Devine went to the room and knocked, and after receiving no response he entered, observed that no one was present, and turned down the television in the room. Upon leaving the room, Devine observed Short entering the building through a side door located on the north side of the building and briefly spoke with him.

At some point, unbeknownst to Devine, Short again left the Hotel. A video camera located at the north door documented that, at approximately 3:20 a.m., Short was returning to the Hotel when he appeared to fumble with his key-card at the door, and, at 3:23 a.m., he collapsed, hitting his head against a wall before falling to the ground. The camera was part of a system in which a monitor was located in the general manager's office which displayed images from each of sixteen video cameras. The general manager's office is adjacent to the front desk. After falling, Short was visible on the camera and did not move.

At approximately 7 a.m., Gustavo Martinez, a Baymont maintenance employee, noticed Short lying outside the north door as he was driving around the corner of the Hotel and called the front desk, notifying General Manager Debbie Speziale, who had recently arrived and had walked in through the Hotel's main entrance. Speziale and Devine proceeded to the north door and observed Short lying outside the door, and Speziale called 911 while Devine exited out another door and walked around the Hotel and back to the north door because he could not open the door due to Short lying in front of it. Devine checked for a pulse but was unable to locate one, and he observed that Short was purple and appeared to be dead. Ultimately, the Marion County Health Department pronounced Short dead at 7:38 a.m. from “Complications of acute alcohol intoxication and atherosclerotic coronary artery disease” and noted that “Environmental Cold Exposure” was a “ Significant Condition [ ] Contributing To Death But Not Resulting In The Underlying Cause....” Appellant's Appendix at 89.

On November 13, 2009, the Estate filed a complaint for damages as a result of wrongful death and request for trial by jury alleging negligence by Baymont which caused Short's death. On February 2, 2010, Baymont filed its answer. On June 18, 2010, Devine was deposed in which he testified that, during his shift, he does not walk around the building to make routine or periodic inspections of the exterior doors not visible from the front desk and that he is to stay at the main entrance because that is where unregistered guests must enter and it is a danger to have the desk unmonitored during overnight hours. Devine also testified that he will make observations if there is a reason to leave the front desk, such as if a guest requests something, but that “if there's no need for me to be away from the desk, there's no possibility for me to be able to check those doors....” Id. at 67. Devine testified that he examines the exterior of the building and the doors when he arrives for his shift by driving around the building and makes notes necessary for the day shift or maintenance workers about issues he identifies, and he will again look at the Hotel's exterior when he leaves in the morning. Devine testified that he had been told that the purpose of the video monitoring system was to deter potential crime and to record crimes committed to aid police investigation, and that the system also was equipped with a “panic system” which allows the Hotel to immediately notify the police if a crime has been committed. Id. at 66.

Devine testified that, on the night in question, he did not receive requests from guests near the north door after the incident in which he let himself into Short's room to turn down the television. He testified that during his shift that evening, he passed through the general manager's office on three occasions while on his way to other areas of the Hotel, that two of those occasions were after Short had collapsed, and that on each occasion he glanced at the video monitor which was located about ten to twelve feet from him as he passed. The monitor, which was a nineteen-inch screen, displayed sixteen images at once, and the only image large enough for Devine to see at that distance was the image of the main entrance and not the north door. Devine testified that he did not notice Short at any time between 3:20 a.m. and 7:00 a.m. on the monitor either walking to the hotel across the parking lot or collapsing and lying near the north door. Devine testified that he reviewed the video showing Short's body and found that there was no activity at the north door following the fall until 7 a.m.

Further, on October 4, 2010, Sentman was deposed in which she testified that she does not discuss the security system when guests check in and that, if they ask, she tells guests that “there's cameras that record the inside exits.” Id. at 41. Sentman testified that she has experience working the night audit shift and that she had been instructed while working that shift “to stay in the front desk or lobby area as much as possible” and to not leave the front desk “unless you absolutely have to,” such as for two or three minutes to “run a towel up to a guest room” or use the restroom. Id. at 42. She also testified that she smokes and will smoke “[r]ight outside the lobby” where she can observe the front desk. Id.

Also on October 4, 2010, Speziale was deposed in which she testified that her employees perhaps checked the video monitor one or two times during their shift and that there was no rule about employees checking the monitor. Speziale testified that Baymont had an unwritten rule that the night auditor should not be away from the front desk for more than two minutes if possible. She also testified that in order to see the video monitor clearly, one needed to be about three or four feet away from it. She testified that the Baymont had an employee handbook, that employees were required to sign an acknowledgement that they had received the handbook, and that Devine signed for his copy of the handbook. She also testified that the Hotel had never had an issue of a vagrant in a doorway.

On September 2, 2011, Baymont filed a motion for summary judgment along with a memorandum in support and designation of evidence. On November 4, 2011, the Estate filed a response and designation of evidence in support of response to Baymont's summary judgment motion, as well as a memorandum in support of its response. On November 29, 2011, the court held a hearing on Baymont's summary judgment motion in which Baymont's counsel noted at the hearing that “[t]here was no snow or any weather condition that would put us on notice that there could have been an issue that night” and that “Short simply fell over due to his own problem....” Transcript at 3. The Estate argued at the hearing, among other things, that Baymont imposed a duty on itself in its employee handbook in that it required employees to keep the doorways clear. That same day, the court granted Baymont's motion, finding that “there are no genuine issues of material fact precluding the entry of summary judgment in this case....” Appellant's Appendix at 6. This appeal follows.

The issue is whether the court erred in granting Baymont's 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. Id. Our review of a summary judgment motion is limited to those materials designated to the trial court. Id. In reviewing a trial court's ruling on a motion for summary judgment, we may affirm on any grounds supported by the Indiana Trial Rule 56 materials. Catt v. Bd. of Comm'rs of Knox Cnty., 779 N.E.2d 1, 3 (Ind.2002).

A party moving for summary judgment bears the initial burden of showing no genuine issue of material fact and the appropriateness of judgment as a matter of law. Monroe Guar. Ins. Co. v. Magwerks Corp., 829 N.E.2d 968, 975 (Ind.2005). If the movant fails to make this prima facie showing, then summary...