Midwest Commerce Banking Co. v. Livings

Decision Date17 February 1993
Docket NumberNo. 20A03-9207-CV-200,20A03-9207-CV-200
Citation608 N.E.2d 1010
PartiesMIDWEST COMMERCE BANKING COMPANY, Appellant-Defendant, v. Linda L. LIVINGS, Appellee-Plaintiff.
CourtIndiana Appellate Court

Thomas R. Hamilton, Daniels, Sanders, Pianowski, Hamilton & Todd, Elkhart, for appellant-defendant.

William J. Cohen, Elkhart, for appellee-plaintiff.

GARRARD, Judge.

This is an interlocutory appeal from the denial of defendant's motion for summary judgment.

On August 18, 1989, Linda L. Livings (Livings) was involved in an accident at the Midwest Commerce Banking Company's branch office in Elkhart, Indiana. Livings went to the bank after work around 3:30 P.M. to cash some checks. She went through the drive-thru, but after thinking that the teller had given her too much money, Livings arranged to go inside and have the teller recount the sum.

When Livings went inside she saw queuing ropes suspended by movable posts to guide customers in line while waiting for a teller. The bank was fairly crowded, with some fifteen customers inside, so Livings waited near the front end of the ropes until the drive-thru teller motioned her forward. Livings apparently began to walk around the end of the rope to go toward the teller, but when she started forward she fell, slamming into the teller counter injuring her left leg and left shoulder. The cause of Livings' fall is uncertain. She speculates that she may have tripped on the carpet, or perhaps she was pushed by someone in line. Livings sustained a torn rotator cuff in her left shoulder that required surgery and physical therapy. Her leg healed on its own.

On May 2, 1990, Livings filed suit against Midwest Commerce Banking Co. (Bank) for personal injuries sustained in the August, 1989 accident. After discovery, the Bank filed its motion for summary judgment on October 18, 1991 and the court denied the Bank's motion on June 9, 1992. The Bank then requested and the trial court granted an interlocutory appeal from this denial.

We reverse.

The Bank presents one issue which we restate as follows: Whether the trial court erred in denying the Bank's motion for summary judgment when Livings designated no facts to the trial court on a necessary element of her negligence claim.

The Bank filed its motion for summary judgment on October 18, 1991. In its motion the Bank alleged that Livings designated no facts to the trial court on the cause of Livings' fall and therefore no facts were before the trial court on the proximate cause of Livings' injury. The Bank contends that without at least some facts in the designated materials before the trial court supporting all the elements of Livings' negligence claim, summary judgment should be granted against her. We agree.

When reviewing a grant or denial of summary judgment, we are limited to the facts designated to the trial court by the parties. Jackson v. Blanchard (1992), Ind.App., 601 N.E.2d 411, 415; Babinchak v. Town of Chesterton (1992), Ind.App., 598 N.E.2d 1099, 1101-02. Indiana Trial Rule 56(C) places the burden on the movant to establish the propriety of granting summary judgment. The moving party must make a prima facie showing that (1) there is no issue as to any material fact, and (2) the movant is entitled to judgment as a matter of law. Babinchak, supra at 1101. If both requirements are met, the burden shifts to the nonmoving party to show specific facts which establish the existence of a genuine issue for trial; that is, facts which demonstrate the need for a factfinder to correctly resolve the issues. It is incumbent upon both parties to specifically designate to the trial court the evidence in the pleadings, depositions, answers to interrogatories, admissions on file, affidavits, and testimony upon which they rely. Id. Both the trial court and the appellate court cannot look beyond whatever evidence has been designated. Id.

In addition, in order to recover in negligence, Livings must establish (1) a duty on the part of the Bank to conform its conduct to the standard of care that arises out of its relationship with Livings, (2) a failure on the part of the Bank to conform its conduct to the requisite standard of care required by the relationship, and (3) an injury to Livings proximately caused by the Bank's failure to conform its conduct to the standard of care required. Webb v. Jarvis (1991), Ind., 575 N.E.2d 992, 995. Absent factual evidence designated to the trial court, negligence will not be inferred. Hale v. Community Hosp. of Indianapolis, Inc (1991), Ind.App., 567 N.E.2d 842, 843; Ogden Estate v. Decatur County Hosp. (1987), Ind.App., 509 N.E.2d 901, 903, trans. denied. Indeed, all of...

To continue reading

Request your trial
49 cases
  • Anderson v. Griffin
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • February 7, 2005
    ...as a statement of Indiana law, McConnell v. Porter Memorial Hospital, 698 N.E.2d 865, 869 (Ind.App.1998); Midwest Commerce Banking Co. v. Livings, 608 N.E.2d 1010, 1013 (Ind.App.1993); Ogden Estate v. Decatur County Hospital, 509 N.E.2d 901, 902 (Ind.App.1987); it is simple, lucid, and, in ......
  • Carroll v. Jobe
    • United States
    • Indiana Appellate Court
    • August 10, 1994
    ...respond by setting forth specific facts which demonstrate the existence of a genuine issue for trial. Midwest Commerce Banking Co. v. Livings (1993), Ind.App., 608 N.E.2d 1010, 1012. At the time of filing the motion or response, a party shall designate to the court all parts of the evidenti......
  • McCartin McAuliffe Mechanical Contractor, Inc. v. Midwest Gas Storage, Inc.,
    • United States
    • Indiana Appellate Court
    • September 18, 1997
    ...a motion for summary judgment, we may consider only the evidence specifically designated by the parties. Midwest Commerce Banking Co. v. Livings, 608 N.E.2d 1010, 1012 (Ind.Ct.App.1993). The trial court was not required to disclose and did not disclose its reasons for granting summary judgm......
  • Williams v. Norfolk S. Corp.
    • United States
    • U.S. District Court — Northern District of Indiana
    • June 20, 2018
    ...458 (Ind. Ct. App. 2000) (citing Miller v. Monsanto Co. , 626 N.E.2d 538, 541 (Ind. Ct. App.1993), Midwest Commerce Banking Co. v. Livings , 608 N.E.2d 1010, 1012 (Ind. Ct. App.1993) ). Accordingly, "negligence cannot be inferred from the mere fact that an injury occurred." Maroules v. Jumb......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT