APPEAL FROM THE FLOYD CIRCUIT COURT. The Honorable Susan L. Orth, Special Judge. Cause No. 22C01-1207-CT-1068.
ATTORNEY FOR APPELLANT: W. EDWARD SKEES, The Skees Law Office, New Albany, Indiana.
ATTORNEYS FOR APPELLEES: RICHARD T. MULLINEAUX, CRYSTAL G. ROWE, ASHLEY GILLENWATER EADE, Kightlinger & Gray, LLP, New Albany, Indiana.
CRONE, Judge. MATHIAS, J., concurs. RILEY, J., concurs in part and dissents in part with opinion.
Sharon Handy appeals the trial court's entry of summary judgment in favor of P.C. Building Materials, Inc., PC Properties, LLC, David A. Stemler, and Karen L. Stemler (collectively " PC" ) on Handy's negligence claim against PC. The sole issue presented for our review is whether the trial court properly entered summary judgment in favor of PC. Concluding that genuine issues of material fact remain for determination by a jury, we reverse and remand for further proceedings.
Facts and Procedural History
The limited undisputed facts available for our review indicate that on Saturday, July, 10, 2010, Handy entered onto the P.C. Building Materials store property in New Albany. The store was open for business and Handy went to the store to shop for items for a home remodeling project. While inside the store, Handy spoke to a store salesperson who directed her to look at some granite countertops that were displayed outside the store. The countertops were leaning against the outside wall of the store, just to the side of the front entrance. Handy moved the countertops around a bit and took some rough measurements before leaving the premises. The next day, Sunday, July 11, 2010, Handy decided to return to the store to
again look at the granite and to take precise measurements to see if the countertops might work in her remodeling project. Handy was not sure whether or not the store would be open that day. The store was closed when Handy arrived. However, since the countertops were still outside the store, Handy decided to measure them. There were at least two granite countertops leaning against the front outside wall of the store, one right in front of the other. After she measured the first countertop as it leaned against the wall, Handy then pulled the first countertop forward toward her body in order to measure the second countertop that was behind it. Because she moved the first countertop " maybe an inch or so more past its balancing point" the granite became " way too heavy." Appellees' App. at 37. The first countertop fell over on Handy's foot and " kicked out" the countertop behind it so that it too fell on her foot. Id. at 36. Handy, who was wearing flip-flops at the time, suffered an injury to her toe.
On July 10, 2012, Handy filed a negligence complaint against PC seeking damages for her injury. On September 26, 2013, PC filed a motion for summary judgment and designation of evidence arguing that Handy was a trespasser on the premises, or at best a licensee, and that PC breached no duty to her as a matter of law. On November 1, 2013, Handy served her response and designation of evidence in opposition to PC's motion, arguing that she was a business invitee and that a genuine issue of material fact remained as to whether PC breached its duty to her. Following a hearing, the trial court granted PC's motion for summary judgment. Specifically, the court concluded that because Handy entered the premises without PC's permission, she was a trespasser to whom PC owed only a duty to refrain from wilfully or wantonly injuring. The trial court further concluded that, even applying a higher standard of care, there was no genuine issue of material fact indicating that the countertops were a latent danger or any facts to indicate that PC should have realized that the countertops presented an unreasonable danger that Handy would not have discovered. Thus, the trial court concluded, as a matter of law, that PC did not breach any duty of care to Handy. This appeal ensued.
Discussion and Decision
Section 1 -- Standard of Review and Designated Evidence
Our standard of review in summary judgment cases is well settled.
When reviewing the grant or denial of summary judgment, this court applies the same standard as the trial court. Specifically, we must determine whether there is a genuine issue of material fact requiring a trial and whether the moving party is entitled to judgment as a matter of law. Neither the trial court nor the reviewing court may look beyond the evidence specifically designated to the trial court. A party seeking summary judgment must make a prima facie showing that there are no genuine issues of material fact and that the party is entitled to judgment as a matter of law. Once the moving party satisfies this burden through evidence designated to the
trial court pursuant to Trial Rule 56, the nonmoving party may not rest on its pleadings, but must designate specific facts demonstrating the existence of a genuine issue for trial. On appeal, we will assess the trial court's decision to ensure that the parties were not improperly denied their day in court. A genuine issue of material fact exists where facts concerning an issue that would dispose of the litigation are in ...