Sturgis v. Silvers, 1:15–cv–00738–JMS–MJD

• Decision Date: 31 October 2017
• Docket Number: No. 1:15–cv–00738–JMS–MJD,1:15–cv–00738–JMS–MJD
• Citation: 296 F.Supp.3d 981
• Parties: Dianna STURGIS, Plaintiff, v. Jared SILVERS, Alex Benzimra, Dylan Schwaber, Jesse Schreibman, Jakob Weingold, Chad Rudden, Joseph M. Bauer, Cody Allen, Blair Bodek, and David Bell, Defendants.
• Court: U.S. District Court — Southern District of Indiana

296 F.Supp.3d 981

Dianna STURGIS, Plaintiff,

v.Jared SILVERS, Alex Benzimra, Dylan Schwaber, Jesse Schreibman, Jakob Weingold, Chad Rudden, Joseph M. Bauer, Cody Allen, Blair Bodek, and David Bell, Defendants.

No. 1:15–cv–00738–JMS–MJD

United States District Court, S.D. Indiana, Indianapolis Division.

Signed October 31, 2017

Mary Beth Ramey, Richard D. Hailey, Ramey & Hailey, Indianapolis, IN, for Plaintiff.

Richard W. McMinn, Law Offices of the Liberty Mutual Group, Andrea M. Shelton, Lee F. Baker, Nationwide Mutual Insurance Company Trial Division, Derek Leonard Mandel, Mandel Horn, P.C., Carmel, IN, Douglas Alan Hoffman, Carson Boxberger, John W. Richards, Mary Anne Pelic, Bunger & Robertson, Bloomington, IN, Lauren Hardesty, Michael R. Bain, Hume Smith Geddes Green & Simmons, Benjamin G. Stevenson, W. Brent Threlkeld, Threlkeld & Associates, Indianapolis, IN, for Defendants.

ORDER

Hon. Jane Magnus–Stinson, Chief Judge

In 2014, Dianna Sturgis, then a freshman at Indiana University ("IU"), attended a party at a house rented by several other IU students.During the party, Ms. Sturgis was standing on a second story balcony when the balcony railing collapsed and Ms. Sturgis fell to the ground.As a result of the injuries she suffered, Ms. Sturgis brought suit against several individuals, including the landlord of the house and its ten tenants, alleging negligence.[FilingNo. 42.]

Nine tenants¹ filed separate Motions for Summary Judgment, each of which is ripe for the Court's review.Accordingly, the Court will now consider Motions filed by tenants Chad Rudden, Blair Bodek, Jared Silvers, Jakob Weingold, Joseph Bauer, Jesse Schreibman, Cody Allen, David Bell, and Alex Benzimra, (collectively, "Defendants").[FilingNo. 297;FilingNo. 300;FilingNo. 303;FilingNo. 306;FilingNo. 309;FilingNo. 312;FilingNo. 316;FilingNo. 319;andFilingNo. 324.]In doing so, this Court must consider the holdings set forth in recent Indiana premises liability cases such as Rogers v. Martin , 63 N.E.3d 316(Ind.2016), along with time-honored principles found in cases such as Burrell v. Meads , 569 N.E.2d 637(Ind.1991).

In addition to Defendants' nine Motions for Summary Judgment, the Court will also consider Objections filed by three Defendants.[Filing No. 342at 1;Filing No. 343at 1–2;Filing No. 347at 2.]

I.STANDARD OF REVIEW

A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment as a matter of law.SeeFed. R. Civ. P. 56(a).As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits.Fed. R. Civ. P. 56(c)(1)(A).A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact.Fed. R. Civ. P. 56(c)(1)(B).Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated.Fed. R. Civ. P. 56(c)(4).Failure to properly support a fact in opposition to a movant's factual assertion can result in the movant's fact being considered undisputed, and potentially in the grant of summary judgment.Fed. R. Civ. P. 56(e).

In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision.A disputed fact is material if it might affect the outcome of the suit under the governing law.Hampton v. Ford Motor Co. , 561 F.3d 709, 713(7th Cir.2009).In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts are not outcome determinative.Harper v. Vigilant Ins. Co. , 433 F.3d 521, 525(7th Cir.2005).Fact disputes that are irrelevant to the legal question will not be considered.Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202(1986).

On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events.Johnson v. Cambridge Indus. , 325 F.3d 892, 901(7th Cir.2003).The moving party is entitled to summary judgment if no reasonable fact-finder could return a verdict for the non-moving party.Nelson v. Miller , 570 F.3d 868, 875(7th Cir.2009).The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor.Darst v. Interstate Brands Corp. , 512 F.3d 903, 907(7th Cir.2008).It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder.O'Leary v. Accretive Health, Inc. , 657 F.3d 625, 630(7th Cir.2011).The Court need only consider the cited materials, Fed. R. Civ. P. 56(c)(3), and the Seventh Circuit Court of Appeals has "repeatedly assured the district courts that they are not required to scour every inch of the record for evidence that is potentially relevant to the summary judgment motion before them,"Johnson , 325 F.3d at 898.Any doubt as to the existence of a genuine issue for trial is resolved against the moving party.Ponsetti v. GE Pension Plan , 614 F.3d 684, 691(7th Cir.2010).

II.BACKGROUND

A.The Premises

On January 26, 2013, Defendants entered into a lease (the "Lease") with Timarron Real Estate, LLC("Timarron") to rent a house located at 707 East Eighth Street, in Bloomington, Indiana (the "House").[Filing No. 326–1at 2.]The House was constructed in or around the year 1921, and Timarron had owned the House since approximately 2002.[Filing No. 305–2at 3;Filing No. 305–2at 13.]Timarron rented the House to tenants continuously from 2002 until 2014, with the exception of one year and one semester, during which the House was not rented.[Filing No. 305–2at 3.]In addition to owning the House, Timarron also managed the property.

The House featured an area above the sunroom on the south side of the structure which was used as a porch or balcony.[Filing No. 305–2at 7.]This area was surrounded on three sides by a redwood railing.[Filing No. 305–2at 9.]Prior to Defendants renting the House, no previous tenants had complained about the condition of the balcony railing.[Filing No. 305–2at 10.]

Pursuant to the Lease, Defendants accepted the House in the condition in which it existed as of the date of the Lease, as follows:

8.Residents hereby accept Premises in its present condition except as specified on the move-in inspection form.

[Filing No. 326–1at 3.]In addition, Defendants agreed to refrain from making alterations to the House's doors or windows, and agreed to keep the House clean, as follows:

10.Residents hereby agree that no alterations are to be made to the doors or windows (such as additional locks or deadbolts), woodwork, walls, or floors without written consent of Lessor.Residents also agree that no satellite dishes or other audiovisual equipment shall be installed on the exterior of the Premises without written consent of the Lessor.Residents shall not cause or permit any alterations, additions, or changes, of or upon any part of the Premises without first obtaining the written consent of Lessor.

11.Residents shall: (a) keep the unit in a clean condition during their occupancy; (b) pay for all damages to the Premises or to any other Resident or other person(s) caused by waste, misuse, or neglect of Residents or their guests; (c) not allow dogs, cats, or other domestic animals or pets on the Premises.Harboring a pet shall be considered a material breach and automatic eviction will result, unless written consent from Lessor has been given and additional deposits posted; (d) be responsible for any stoppage caused to the plumbing or damage to other equipment, appliances, garbage disposals, or fixtures in or on the Premises caused by misuse; (e) be responsible for doors, locks, windows, screens; (f) return unit provided by Lessor to a clean condition at the end of the rental term; and (g) furnish and pay for ALL utility costs and services, including but not limited to water, sewer, electricity, telephone, and cable, incurred by them.

[Filing No. 326–1at 3.]Further, Defendants agreed to permit Timarron to enter the House to examine the House and make repairs thereto, as follows:

12.Residents shall permit Lessor or any of their agents to enter said Premises during all reasonable hours (9:00AM to 5:00PM on any day) to examine and protect same, to show said Premises to prospective Residents, or to make such repairs, additions or alterations thereto as may be deemed necessary by Lessor.During such inspection, Residents or a representative of Residents may be present; however, Lessor may enter the Premises at any time in the event of a bona fide emergency.

[Filing No. 326–1at 3.]

B.The Party

On April 12, 2014, Ms. Sturgis was a freshman at IU.[Filing No. 305–1at 9.]At the time, she did not know Defendants and did not know who lived at the House.[Filing No. 305–1at 9.]She learned that a party was occurring at the House via a group chat between the members of her sorority pledge class.[Filing No. 299at 12.]Once at the party, Ms. Sturgis voluntarily went out onto the balcony.[Filing No. 299at 11.]At some point while on the balcony, Ms. Sturgis leaned on the railing.[Filing No. 299at 11;Filing No. 305–1at 17.]She did not see anything about the railing that made her think that she should not lean on it.[Filing No. 299at 11.]While Ms. Sturgis was on the balcony, the railing collapsed, and Ms. Sturgis fell from the second story balcony on to the ground below.[Filing No. 305–1at 3.]

At the time of the railing collapse, most Defendants were in various locations...