Webb v. City of Carmel

• Decision Date: 30 April 2018
• Docket Number: Court of Appeals Case No. 29A05–1710–CT–2420
• Citation: 101 N.E.3d 850
• Parties: Pamela WEBB, Appellant–Plaintiff, v. CITY OF CARMEL, Carmel Clay Parks Building Corporation, and Carmel/Clay Board of Parks & Recreation, Appellees–Defendants.
• Court: Indiana Appellate Court

101 N.E.3d 850

Pamela WEBB, Appellant–Plaintiff,

v.CITY OF CARMEL, Carmel Clay Parks Building Corporation, and Carmel/Clay Board of Parks & Recreation, Appellees–Defendants.

Court of Appeals Case No. 29A05–1710–CT–2420

Court of Appeals of Indiana.

FILED April 30, 2018

Attorney for Appellant: Stacy L. Kelley, Glaser & Ebbs, Indianapolis, Indiana

Attorney for Appellees: Aimée Rivera Cole, Travelers Staff Counsel Indiana, Indianapolis, Indiana

Kirsch, Judge.

[1] Pamela Webb ("Webb") appeals the trial court's grant of summary judgment in favor of City of Carmel ("Carmel"), Carmel Clay Parks Building Corporation ("the Corporation"), and Carmel/Clay Board of Parks & Recreation ("the Park Board") (collectively, "the Appellees") in her action against the Appellees for negligence. She raises the following restated issues for our review on appeal:

I. Whether the trial court abused its discretion in granting the Appellees' motion to strike portions of Webb's response in opposition to the motion for summary judgment; and

II. Whether the trial court erred in granting summary judgment in favor of the Appellees.

[2] We affirm.

Facts and Procedural History

[3] This case arises from an incident that occurred on June 20, 2014 at the Monon Community Center located at 1235 Central Park Drive East, Carmel, Indiana ("the Property"). Webb alleges that as she was walking down the gymnasium bleacher steps, the bottom step of the bleachers slid causing her to fall to the floor. Webb contends that the Property is "owned, operated, managed and/or maintained by" the Appellees. Appellant's App. Vol. II at 169. Webb alleges that the Appellees were negligent for failure to keep the entry/exit of the bleacher steps in a reasonably safe condition, failing to warn guests of the unsafe condition of the steps, failure to exercise reasonable care in the design, operation and maintenance of the steps, failure to provide adequate lighting, and/or failure to design a safe entryway for guests. Id. at 169–70.

[4] The Corporation is the sole owner of the Property. Id. at 81–108. The Corporation and Clay Township entered into a Sublease and Management Agreement with the Park Board granting the Park Board the exclusive right, power, and authority to access, occupy, improve, and operate the approximately 161 acres comprising Central Park in Carmel, Indiana, which includes the Property. Id. at 55–61, 141. Williams and Associates, Ltd. designed the Property. Id. at 141. Neither the Corporation nor Carmel developed, constructed, operated, designed, or maintained the Property. Appellees' App. Vol. II at 92. Carmel never owned the Property. Id. at 181. Carmel has no knowledge of the inspection practices of the Property. Id. at 183. The Park Board operates as a political subdivision on its own behalf and, pursuant to Article IV, Section 4.2(i) of the Interlocal Agreement,¹ has the right to sue and be sued by or in its legal name as the "Carmel/Clay Board of Parks and Recreation" with service of process being had upon the President of the Board. Id. at 91, 96–126.

[5] On or about July 7, 2014, Webb served the Mayor of Carmel with a Tort Claim Notice. Carmel acknowledged receipt of Webb's Tort Claim Notice and referred the notice to their liability insurance carrier, Travelers Insurance ("Travelers"), and Travelers subsequently requested further documentation of Webb's medical records and billing statements. On May 25, 2016, almost two years after filing the Tort Claim Notice, Webb filed a Complaint for Damages against Carmel and the Indiana Parks and Recreation Association.² On June 16, 2016, counsel for Carmel advised counsel for Webb that Carmel did not have any ownership interest in the Property. Id. at 187. On June 20, 2016, counsel for the City provided counsel for Webb with documents, confirming that the owner of the Property was the Corporation and the manager of the Property was the Park Board. Id. On September 13, 2016, Carmel served its responses to Webb's discovery, which included the same documents provided on June 20, 2016 by Carmel's counsel showing the Corporation as the owner and the Park Board as the operator of the Property and the lack of any role by the City in the development, construction, ownership, operation, design or maintenance thereof. Id. at 179–85, 188–94. Carmel filed a motion for summary judgment on November 4, 2016 on the basis that it did not own, manage, or control the Property. Id. at 6–14.

[6] On December 28, 2016, Webb filed a motion seeking leave to file an amended complaint naming the Corporation and the Park Board as defendants ("the Amended Complaint"). Along with the motion seeking leave to file the Amended Complaint, Webb filed a proposed summons for both the Corporation and for the Park Board. The trial court made a notation on the summonses that service was to be done by the attorney. Id. at 25–28. Webb's motion was granted on December 29, 2016. The Amended Complaint was filed December 30, 2016. The Park Board was not served with the summons or the Amended Complaint, nor was it served with a Notice of Tort Claim. Id. at 92. The Corporation was not served with the summons or the Amended Complaint. Id. at 195. On January 10, 2017, the trial court ordered that Carmel's motion for summary judgment was rendered moot by the filing of the Amended Complaint. On June 6, 2017, the Appellees filed a motion for summary judgment on the basis that the complaint against the Corporation and the Park Board was not filed within the statute of limitation and on the basis that Carmel was not the owner or operator of the Property, and Webb later filed her response in opposition to the summary judgment motion and designated evidence. Id. at 36–53, 196–212. The Appellees filed their reply to Webb's response as well as a motion to strike various purported representations of fact contained in Webb's response in opposition to the Appellees' motion for summary judgment. A hearing was held on the Appellees' motion for summary judgment and the motion to strike, and on September 25, 2017, the trial court entered an order granting the Appellees' motion to strike and motion for summary judgment. Appellant's App. Vol. II at 12–18. Webb now appeals.

Discussion and Decision

I. Motion to Strike

[7] Webb initially contends that the trial court abused its discretion in granting the Appellees' motion to strike several statements contained in her response in opposition to the Appellees' motion for summary judgment.³ A trial court has broad discretion in ruling on the admissibility of evidence. Morris v. Crain , 71 N.E.3d 871, 877 (Ind. Ct. App. 2017). Such discretion extends to rulings on motions to strike affidavits on the grounds that they fail to comply with the summary judgment rules. Id. "We will determine that a trial court has abused its discretion when the trial court's decision is clearly against the logic and effect of the facts and circumstances before it." Id.⁴

[8] Affidavits in support of or in opposition to a motion for summary judgment are governed by Indiana Trial Rule 56(E), which provides, in relevant part: "Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein." The requirements of Trial Rule 56(E) are mandatory; hence, a court considering a motion for summary judgment should disregard inadmissible information contained in supporting or opposing affidavits. Reed v. City of Evansville , 956 N.E.2d 684, 695–96 (Ind. Ct. App. 2011), trans. denied . Further, the party offering the affidavit into evidence bears the burden of establishing its admissibility. Id. at 696. A party may not rest on the mere allegations of his or her pleadings. T.R. 56(E). Unsupported factual assertions or bare factual allegations should be excluded from consideration.

[9] In their motion to strike, the Appellees sought to have six statements stricken from Webb's response in opposition to the Appellees' motion for summary judgment, and the trial court granted the motion to strike as to all six statements.

[10] First, the Appellees moved to strike the following statements: (1)"The City of Carmel approved and acknowledged receipt of Ms. Webb's Tort Claim Notice and referred the notice to their liability insurance carrier, Travelers, to handle Ms. Webb's personal injury claim and requested further documentation of Ms. Webb's medical records and billing statements"; and (2) "It is undisputed that the City of Carmel approved and acknowledged receipt of Plaintiff's Tort Claim Notice." Appellant's App. Vol. II at 184–185. The trial court granted the motion in part by striking the word "approved" from each sentence reasoning that no properly designated evidence supported the assertion that Carmel "approved" Webb's Tort Claim Notice. Id. at 13. Indiana Code section 34–13–3–11 provides that a claim is denied if the governmental entity fails to approve the claim in its entirety within ninety days, unless the parties have reached a settlement before the expiration of that period. Webb argues that the repeated requests by Travelers for her medical records and billing statements "suggests" that Carmel approved her claim and requested the documents to assess damages in preparation for settlement negotiations. Appellant's Br. at 19. This argument acknowledges that settlement discussions had not even begun. While Webb relies upon the Tort Claim Notice, the certified mail return receipt of the Tort Claim Notice, and correspondence related to the routine request by Travelers for Webb's medical records and itemized billing statements, id. at 19, those documents merely reflect a request for information and in no way support her argument that her Tort Claim Notice was approved by anyone. Appellant's App. Vol. II at 155–57. On the contrary, by operation of law pursuant to Indiana Code section 34–13–3–11, the Tort Claim...