J.C. Penney Co. Inc v. Simon Prop. Group Inc

• Decision Date: 27 April 2010
• Docket Number: No. 41A01-0907-CV-375.,41A01-0907-CV-375.
• Citation: 928 N.E.2d 579
• Parties: J.C. PENNEY COMPANY, INC., Appellant-Defendant,v.SIMON PROPERTY GROUP, INC.; Greenwood Park Mall, LLC, and IPC International Corporation, Appellees-Defendants.
• Court: Indiana Appellate Court

928 N.E.2d 579

J.C. PENNEY COMPANY, INC., Appellant-Defendant,v.SIMON PROPERTY GROUP, INC.; Greenwood Park Mall, LLC, and IPC International Corporation, Appellees-Defendants.

No. 41A01-0907-CV-375.

Court of Appeals of Indiana.

March 17, 2010.

Publication Ordered April 27, 2010.

Mark C. Sherer, Kopka, Pinkus, Dolin & Eads, LLC, Indianapolis, IN, Attorney for Appellant.

Thomas C. Hays, Stefanie R. Crawford, Sonia C. Das, Lewis Wagner, LLP, Indianapolis, IN, Attorneys for Appellees.

OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

J.C. Penney (“Penney”) appeals the trial court's order granting summary judgment in favor of Simon Property Group (“Simon”) and IPC International Corporation (“IPC”) on the negligence complaint filed by Betty J. and Bill L. Walker (collectively “the Walkers”).¹ Penney raises a single issue for review, namely, whether there is a genuine issue of material fact as to whether Simon and/or IPC owed a duty to the Walkers.

We affirm.

FACTS AND PROCEDURAL HISTORY

In 1981, Simon was developing the Greenwood Park Mall (“the Mall”), a shopping center in Johnson County. On January 30, Penney purchased 10.5932 acres to be developed as the Penney anchor of the Mall. On that same date, Simon entered into a Restatement of Operating Agreement (“Operating Agreement”) with the mall anchors, including Penney, which defined each party's obligations regarding mall operations. Section 8.3 of the Operating Agreement provides, in relevant part:

[Simon] agrees with ... [Penney] as to the Penney site ..., and [its] respective successors and assigns, that unless otherwise expressly provided in [a] Supplemental Agreement (hereinafter defined) with [Penney], [Simon] will perform all maintenance (as defined in Section 8.2 hereof) of the Common Facilities on [Penney's] Site for the period commencing no later than the date ... the [Penney] Building ... is open for business and thereafter so long as [Simon] is required to operate a shopping center under the provisions of Section 6.6(d) hereof....

Appellant's App. at 109. And Section 8.2 of the Operating Agreement provides, in relevant part:

As used in this Section [of the Operating Agreement], the term “maintenance” shall mean that all Common Facilities will be kept at all times in good order and condition and state of repair and well lighted, all in accordance with reasonable standards of first-class regional shopping center operation in the Indianapolis, Indiana area, including without limitation, keeping the same in a clean and sanitary condition, the prompt removal of all rubbish, litter, snow and surface waters and the resurfacing, restriping, replacing, marking and repair of all parking areas, malls, service areas, walkways and landscaping, policing the foregoing with security personnel, and the maintenance of lighting fixtures including replacement of bulbs and furnishing current therefor.

Appellant's App. at 108-09. The Operating Agreement defines “Common Facilities” to include, in relevant part, “[a]ll sidewalks, walkways, aisles, tunnels and open malls providing pedestrian access to and across the [Simon] Site, Lazarus Site, Penney Site and Allied Site except sidewalks around buildings [.]” Id. at 104 (emphasis added). When construction was completed, the Penney Site at the Mall consisted of a retail building attached to the mall, sidewalks around that building, and adjacent parking lots.

On March 31, 2006, Betty Walker (“Walker”), her daughter, and her granddaughter were walking to the Penney store via the sidewalk around the Penney building when a Canada goose attacked Walker. The goose landed on her head, forcing her into a brick wall and then onto the sidewalk.² The attack continued until passersby assisted Walker. Penney “was the owner of the sidewalk where the [goose] attack occurred.” Appellant's Brief at 3.

On February 23, 2007, the Walkers filed their complaint against Simon; the Greenwood Park Mall, LLC; ³ IPC, the company contracted by Simon to provide security for the Mall; and Penney. On October 7, 2008, Simon and IPC filed a joint motion for summary judgment, a memorandum of law in support of the motion, and a designation of evidence.⁴ In particular, Simon and IPC argued that they were entitled to summary judgment because they owed no duty to the Walkers. On December 30, Penney filed its motion in opposition to Simon and IPC's motion for summary judgment, a supporting memorandum of law, and a designation of evidence. Penney argued that a genuine issue of material fact existed as to whether Simon and IPC owed a duty to the Walkers. On January 22, IPC filed its reply brief in support of the motion for summary judgment and designation of evidence. And on February 25, Simon and the Mall filed a reply brief in support of Simon's motion for summary judgment along with a designation of evidence.

On May 7, 2009, the court held a summary judgment hearing. On July 2, the court issued an order granting summary judgment in favor of Simon and IPC. Penney now appeals.

DISCUSSION AND DECISION

Standard of Review

Penney appeals from the trial court's grant of summary judgment in favor of Simon and IPC. Our standard of review for summary judgment appeals is well established:

When reviewing a grant of summary judgment, our standard of review is the same as that of the trial court. Considering only those facts that the parties designated to the trial court, we must determine whether there is a “genuine issue as to any material fact” and whether “the moving party is entitled to a judgment a matter of law.” In answering these questions, the reviewing court construes all factual inferences in the non-moving party's favor and resolves all doubts as to the existence of a material issue against the moving party. The moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law; and once the movant satisfies the burden, the burden then shifts to the non-moving party to designate and produce evidence of facts showing the existence of a genuine issue of material fact.

Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1269-70 (Ind.2009) (citations omitted). The party appealing from a summary judgment decision has the burden of persuading this court that the grant or denial of summary judgment was erroneous. Knoebel v. Clark County Superior Court No. 1, 901 N.E.2d 529, 531-32 (Ind.Ct.App.2009). Interpretation of the language in a contract is a question of law especially suited for summary judgment proceedings. DLZ Ind., LLC v. Greene County, 902 N.E.2d 323, 327 (Ind.Ct.App.2009). We review questions of law de novo, and therefore we give no deference to the trial court's interpretation. Id.

The Walkers' complaint alleges negligence by Penney, Simon, and IPC. The tort of negligence is comprised of three elements: (1) a duty on the part of the defendant in relation to the plaintiff; (2) a failure by the defendant to conform its conduct to the requisite standard of care; and (3) an injury to the plaintiff proximately caused by the failure. Precedent Ptnrs. I, L.P. v. Hulen, 863 N.E.2d 328, 331 (Ind.Ct.App.2007). To prevail on a motion for summary judgment in a negligence case, the defendant must establish that the undisputed material facts negate at least one element of the plaintiff's claim or that the claim is barred by an affirmative defense. Id. (citation omitted). Here, the only element in dispute is duty.

Simon and IPC filed the motion for summary judgment together. But because their arguments and positions differ slightly, they filed separate replies to Penney's opposition to their motion for summary judgment. Thus, we will review the entry of summary judgment in favor of Simon and IPC separately.

Duty of Simon

In the motion for summary judgment, Simon and IPC set out their argument as follows:

In the case at bar, [Walker] alleges that she was walking past J.C. Penney [ ] when she observed a goose on the J.C. Penney[ ] sidewalk. This goose allegedly attacked [Walker]. It is further alleged that the goose was protecting a nest nestled in a planter on this same sidewalk owned by Penney [ ]. J.C. Penney[ ] admits it owns the alleged sidewalk. J.C. Penney [ ] admits it owns the planter. J.C. Penney[ ] admits it maintains the sidewalk. J.C. Penney[ ] admits it maintains the planter. Simon does not. IPC does not.

The undisputed facts in this case clearly indicate that the area where [Walker] was allegedly attacked by a Canadian goose was owned by J.C. Penney. It was not owned, maintained, retained, controlled, secured, or supervised by Simon or IPC. Absolutely no evidence to the contrary has been, or can be, presented. Simon and IPC have no right or responsibility to oversee or remove the Canadian goose that was on J.C. Penney's property, which allegedly attacked [Walker]. It also had no right or responsibility to prevent the Canadian goose from being on J.C. Penney's property. As a matter of law, Simon and IPC owed no duty to [Walker]. [Walker] cannot show an existence of a duty owed to her, or such subsequent breach thereof.

Appellant's App. at 37-38.

In its memorandum of law in opposition to Simon and IPC's motion for summary judgment, Penney argued that a genuine issue of material fact exists as to whether Simon and IPC owed a duty to the Walkers. In particular, Penney argued that there is a genuine issue of material fact as to whether Simon had an obligation under the Operating Agreement to perform maintenance throughout the mall, including on the Penney site. Penney also argued that Simon owed a duty under the three-part balancing test in Thornhill v. Deka-Di Riding Stables, 643 N.E.2d 983 (Ind.Ct.App.1994) trans. denied. We address each argument in turn.

Simon first contends that it owed no duty to Walker under the Operating Agreement. Under that agreement, Simon was obligated to “perform all maintenance ... of the Common Facilities on the [Penney's site]....”...