from the Hamilton Superior Court The Honorable William J.
Hughes, Judge The Honorable William P. Greenaway, Magistrate
Trial Court Cause No. 29D03-1605-CT-4530
ATTORNEY FOR APPELLANT Stacy L. Kelley Glaser & Ebbs
ATTORNEY FOR APPELLEES Aimée Rivera Cole Travelers
Staff Counsel Indiana Indianapolis, Indiana
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;
II. Whether the trial court erred in granting summary
judgment in favor of the Appellees.
and Procedural History
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.
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,
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.
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. 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.
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.
Motion to Strike
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. 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 ...