Rawls v. Marsh Supermarket, Inc.

• Decision Date: 28 January 2004
• Docket Number: No. 34A05-0306-CV-274.,34A05-0306-CV-274.
• Citation: 802 N.E.2d 457
• Court: Indiana Appellate Court
• Parties: Mildred RAWLS, Appellant-Plaintiff, v. MARSH SUPERMARKET, INC., and First National Bank & Trust, Appellee-Defendant.

802 N.E.2d 457

Mildred RAWLS, Appellant-Plaintiff, v. MARSH SUPERMARKET, INC., and First National Bank & Trust, Appellee-Defendant.

No. 34A05-0306-CV-274.

Court of Appeals of Indiana.

January 28, 2004.

Brant J. Parry, Scott Sullivan, Noel & Noel, Kokomo, IN, Attorneys for Appellant.

Ty M. Craver, Hill Fulwider McDowell Funk & Matthews, Indianapolis, IN, Attorneys for Appellee.

OPINION

FRIEDLANDER, Judge.

Mildred Rawls appeal the trial court's grant of summary judgment in favor of First National Bank & Trust (First National), in her negligence claim against First National and Marsh Supermarket, Inc. (Marsh). She presents the following restated issue for review: Did the trial court improperly grant summary judgment in favor of First National?

We reverse and remand.

The facts most favorable to Rawls, the nonmoving party, reveal that First National owned and managed an Automated Teller Machine (ATM) at the Marsh supermarket formerly located at 200 Southway Boulevard East in Kokomo, Indiana. First National installed the ATM pursuant to a lease agreement with Marsh, signed in May 1979. First National relocated the ATM, with Marsh's approval, in 1986 or 1987. At that time, First National chose to mount the ATM on an exterior wall of the building near the east entrance of the supermarket. The ATM was situated on property owned exclusively by Marsh, and First National leased from Marsh a small area (approximately eight by ten feet) directly behind the ATM, in the interior of the store.

On February 5, 1999, Rawls stepped onto a narrow sidewalk in front of the ATM and withdrew cash from First National's ATM. After completing her transaction, Rawls turned to leave and her foot hit the curb, causing her to fall forward to the ground. Thereafter, on November 28, 2000, Rawls filed a negligence complaint against Marsh and First National. The basis of her claim is that the sidewalk in front of the ATM was not wide enough for her to safely turn around and leave the area.

On January 9, 2003, First National filed a motion for summary judgment, alleging that it did not owe a duty to Rawls. Following a hearing on said motion, the trial court granted summary judgment in favor of First National. Rawls now appeals from that ruling, arguing that First National clearly owed a duty of care to its customer, Rawls.

Our standard of review in this regard is well settled:

In an appeal involving summary judgment, the appealing party bears the burden of persuasion, and we assess the trial court's decision to ensure that the parties were not improperly denied their day in court. We analyze the issues, however, in the same way as a trial court would. A party seeking summary judgment must show "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). The movant must designate sufficient evidence to eliminate any genuine factual issues, and once the movant has done so, the burden shifts to the nonmovant to come forth with contrary evidence. The court must accept as true those facts alleged by the nonmoving party, construe the evidence in favor of the non-movant, and resolve all doubts against the moving party.

Shambaugh & Son, Inc. v. Carlisle, 763 N.E.2d 459, 460-61 (Ind.2002) (some citations omitted). Additionally, when the material facts are not in dispute, our review is limited to the determination of whether the trial court correctly applied the law to the undisputed facts. Burkett v. Am. Family Ins. Group, 737 N.E.2d 447 (Ind. Ct.App.2000).

To recover under a theory of negligence, a plaintiff must establish the following three elements: (1) A duty owed by the defendant to conform its conduct to a standard of care arising from its relationship with the plaintiff; (2) a breach of that duty; and (3) an injury proximately caused by the breach of that duty. City of Indianapolis v. Johnson, 736 N.E.2d 295 (Ind.Ct.App.2000). The only element at issue here is whether First National owed Rawls a duty. "Absent a duty, there can be no breach and, therefore, no recovery in negligence." Merchants Nat'l Bank v. Simrell's Sports Bar & Grill, Inc., 741 N.E.2d 383, 386 (Ind.Ct.App.2000). The existence of a duty is a question of law for the court to determine. Baker v. Fenneman & Brown Properties, LLC, 793 N.E.2d 1203 (Ind.Ct.App.2003). "Courts will generally find a duty where reasonable persons would recognize and agree that it exists." Estate of Heck ex rel. Heck v. Stoffer, 786 N.E.2d 265, 268 (Ind.2003). To determine whether a common law duty exists, we balance three factors: "(1) the relationship between the parties; (2) the reasonable foreseeability of harm to the person injured; and (3) public policy concerns." Id.

First National contends that these factors weigh in favor of finding no duty, especially where the lease agreement did not place it in the position of possessor or occupier of the premises where Rawls fell. First National notes that it was in possession of only a very limited area directly behind the exterior wall where the ATM was mounted. Moreover, First National observes that pursuant to the lease agreement, it was Marsh's duty to keep the premises where Rawls fell clean and in a good state of repair. First National argues further that the fall was not reasonably foreseeable because there were no prior reports of customers falling in that location. Finally, with regard to public policy considerations, First National argues that it was not in the best position to protect Rawls against injury because it had no control over the premises where she fell. First National, therefore, asserts that it would amount to an unreasonable burden were we to impose a duty on it to keep Marsh's property in a reasonably safe condition. Under the concept of premises liability, a landowner or possessor/occupier of land¹ must exercise reasonable care for the protection of its invitees. See Sowers v. Tri-County Tel. Co., Inc., 546 N.E.2d 836 (Ind.1989)

. In the instant case, First National did not own or occupy the land where Rawls fell under the traditional legal meaning of the words "own" or "occupy." It can be said, however, that First National retained an easement over said land so that its customers (i.e., invitees) could stand on the sidewalk while conducting transactions at the ATM.

In Sowers, our supreme court faced a similar, nontraditional, premises liability case. In that case, a telephone company hired a contractor to clear brush around its poles. One of the contractor's employees fell into an abandoned manhole located near one of the poles...