United States District Court, S.D. Indiana, Indianapolis Division
JANE MAGNUS-STINSON, CHIEF JUDGE
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. [Filing
tenants 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”). [Filing No. 297; Filing
No. 300; Filing No. 303; Filing No. 306; Filing No. 309;
Filing No. 312; Filing No. 316; Filing No. 319; and Filing
No. 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).
addition to Defendants' nine Motions for Summary
Judgment, the Court will also consider Objections filed by
three Defendants. [Filing No. 342 at 1; Filing No. 343 at
1-2; Filing No. 347 at 2.]
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. See Fed. 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).
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 (1986).
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).
A. The Premises
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. 326-1 at
2.] The House was constructed in or around the year
1921, and Timarron had owned the House since approximately
2002. [Filing No. 305-2 at 3; Filing No. 305-2
at 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. 305-2 at 3.] In addition to owning the
House, Timarron also managed the property.
House featured an area above the sunroom on the south side of
the structure which was used as a porch or balcony.
[Filing No. 305-2 at 7.] This area was surrounded on
three sides by a redwood railing. [Filing No. 305-2 at
9.] Prior to Defendants renting the House, no previous
tenants had complained about the condition of the balcony
railing. [Filing No. 305-2 at 10.]
to the Lease, Defendants accepted the House in the condition
in which it existed as of the date of the Lease, as follows:
Residents hereby accept Premises in its present condition
except as specified on the move-in inspection form.
No. 326-1 at 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 Jocks 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 Tental 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.
No. 326-1 at 3.] Further, Defendants agreed to permit
Timarron to enter the House to examine the House and make
repairs thereto, as follows:
to water, sewer, electricity, telephone, and cable, incurred
12. Residents shall permit Lessor or any of their agents to
enter said Premises during all reasonable hours (9:0OAM 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
[Filing No. 326-1 at 3.]
April 12, 2014, Ms. Sturgis was a freshman at IU. [Filing
No. 305-1 at 9.] At the time, she did not know
Defendants and did not know who lived at the House.
[Filing No. 305-1 at 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. 299 at
12.] Once at the party, Ms. Sturgis voluntarily went out
onto the balcony. [Filing No. 299 at 11.] At some
point while on the balcony, Ms. Sturgis leaned on the
railing. [Filing No. 299 at 11; Filing No. 305-1
at 17.] She did not see anything about the railing that
made her think that she should not lean on it. [Filing
No. 299 at 11.] While Ms. Strugis was on the balcony,
the railing collapsed, and Ms. Sturgis fell from the second
story balcony on to the ground below. [Filing No. 305-1
time of the railing collapse, most Defendants were in various
locations within the House, as follows:
• Blair Bodek, David Bell, Joseph Bauer and Cody Allen
were not on the balcony when it collapsed, [Filing No.
299 at 16; Filing No. 302 at 3; Filing No.
311 at 3; Filing No. 318 at 2];
• Jakob Weingold and Jesse Schreibman were both on the
balcony when it collapsed, with their backs to the balcony,
[Filing No. 305-4 at 5; Filing No. 305-4 at
9; Filing No. 314 at 6];
• Jared Silvers had been in the house for approximately
20 minutes at the time of the collapse, and was in the
kitchen downstairs, [Filing No. 305-5 at 3]; and
• Alex Benzimra was on the balcony when the railing
collapsed, [Filing No. 324 at 6].
• Chad Rudden was not present at the house at any point
during the party and was studying at a library on IU's
campus. [Filing No. 299 at 19.]
the railing collapse, officers from the Bloomington Police
Department responded to the report of a balcony collapse at
the party and noted in their report that “some people
were injured during the incident.” [Filing No.
result of the fall, Ms. Sturgis suffered a bruised lung, a
bruised rib, several scratches on her body, a chipped tooth,
and a bruised eye. [Filing No. 299 at 8.] In
addition, she developed an increased fear ...