Linares v. El Tacarajo

          Appeal from the Marion Superior Court The Honorable Michael D. Keele, Judge Trial Court Cause No. 49D07-1606-CT-21285

          Attorneys for Appellant James R. Browne, Jr. Andrew B. Janutolo Abaigeal F. Musser Goodin Abernathy LLP Indianapolis, Indiana

          Attorneys for Appellee U-Pull-And-Pay, LLC d/b/a Pic a part Judy S. Okenfuss Jenny R. Buchheit Gregory W. Pottorff Ice Miller LLP Indianapolis, Indiana

          ROBB, JUDGE.

         Case Summary and Issue

         [¶1] German Linares suffered injuries when a mobile food truck serving food in the parking lot of an automobile salvage business exploded while he waited in line for his food. Linares sued both the food truck operator, El Tacarajo, LLC, and the salvage business, U-Pull-and-Pay, LLC doing business as Pic-A-Part ("UPAP"), for negligence. Linares appeals the entry of summary judgment for UPAP, raising one issue for our review: whether summary judgment was inappropriate because UPAP owed Linares a duty regarding dangerous activities on its property or, in the alternative, because UPAP was engaged in a joint venture with El Tacarajo and is vicariously liable for its negligent acts. Concluding UPAP did not owe Linares a duty and was not engaged in a joint venture with El Tacarajo, we affirm the trial court's grant of summary judgment to UPAP.

         Facts and Procedural History

         [¶2] UPAP is an automobile salvage business in Indianapolis, Indiana. In the course of its business, flammable materials are sometimes brought onto UPAP's property when junk cars come into the salvage yard. Brian Brownstein, a UPAP assistant store manager on duty when this incident occurred, explained that when UPAP buys a car, it drains the fluids as part of preparing the car to "be out in the yard area where customers can pull parts[.]" Appendix of Appellant, Volume II at 135. In addition, UPAP sometimes comes across propane tanks or other flammable materials that have been left in cars: "we go to the auto return auction which tends to have repossessions. People don't have time to take their belongings out of the car, or it was in a serious accident . . . there might have been like a tank in the trunk that they didn't know about[.]" Id. at 137. UPAP's employees have been trained in how to handle the flammable materials they come across and the company keeps flammables like aerosols, gasoline, and propane in a flame-retardant cabinet to promote safety at the salvage yard. UPAP also posts warnings and instructions for customers and checks customers' bags and tool boxes as they enter to ensure they have not brought any tools or other materials onto the lot that could lead to fires or explosions.

         [¶3] El Tacarajo operated a food truck that occasionally sold Mexican food from UPAP's parking lot in 2014 and 2015. Brownstein stated that this arrangement was "a handshake deal" that had been set up when El Tacarajo approached a previous manager and asked if it could come on site to sell food. Id. at 59. UPAP's local store managers knew that El Tacarajo would sell food from the parking lot on busy days, usually Saturdays and Sundays, but UPAP had "no expectation" about when they would come; "[i]t was just like whenever." Id. at 145; see also id. at 154 (Dan Ulrich, general manager for UPAP's eastern stores, stating El Tacarajo would "come in and sell some food and leave. Come and go as they please."). El Tacarajo paid UPAP $25.00 per day on at least some of the days they set up in UPAP's parking lot, but Brownstein was "not sure [the payments] were made every time[.]" Id. at 61.

         [¶4] UPAP never asked if El Tacarajo was licensed to sell food. UPAP did not ask El Tacarajo whether it had fire safety procedures in place for using gasoline or propane to operate its truck. In fact, Brownstein stated at his deposition that he never had contact with anyone at the food truck. Ulrich noted that El Tacarajo was "not one of our vendors to where we would be checking all of their identifications." Id. at 154. UPAP was not aware of any prior incidents involving an explosion, fire, or other dangerous condition created by a food truck, gas generator, or grill on its premises at any time prior to June 20, 2015. Neither UPAP nor El Tacarajo was aware of any dangerous condition of the food truck or its equipment that would have or could have caused an explosion at any time prior to June 20, 2015. Linares, who was a regular customer of UPAP and who had purchased food from El Tacarajo several times before, stated that he had no reason to believe the food truck was dangerous.

         [¶5] On June 20, 2015, El Tacarajo was on UPAP's property selling food from its food truck. The food truck was positioned in the customer parking lot next to a concrete wall partitioning the parking lot from the salvage yard. Linares also visited UPAP on that date to purchase automobile glass. After making his purchase from UPAP, Linares ordered food from El Tacarajo. As he waited for his food, the food truck suddenly exploded and caught fire. Linares was injured and taken by ambulance to Eskenazi Hospital for treatment.

         [¶6] The Indianapolis Fire Department determined the explosion was caused by the ignition of gas fumes from an open cooking flame. The Marion County Public Health Department made similar findings, concluding that an El Tacarajo employee caused the explosion when, in order to refill a generator, he opened a can of gasoline too close to a flattop grill.

         [¶7] On June 15, 2016, Linares filed his complaint against UPAP^[1] and El Tacarajo, alleging in Count One that El Tacarajo was negligent in its handling of combustible fuels, in failing to have a license from the Marion County Health Department, in failing to train its employees, and in failing to inspect its truck and equipment. Count Two alleged UPAP was negligent in failing to monitor or inspect El Tacarajo's operations, failing to determine whether El Tacarajo was properly licensed, and failing to study the food truck's safety procedures. Count Two also alleged UPAP was vicariously liable for El Tacarajo's negligent acts because it was engaged in a joint venture with El Tacarajo.

         [¶8] During discovery, UPAP served requests for admissions on El Tacarajo, asking El Tacarajo to admit: El Tacarajo did not share profits with UPAP; UPAP did not pay El Tacarajo to market or sell food to UPAP's customers; UPAP and El Tacarajo were not engaged in a joint venture; and UPAP did not control any aspect of El Tacarajo's business or operations. Despite participating in this litigation by, for instance, filing an appearance, filing an answer and jury demand, and attending depositions, El Tacarajo did not respond to the requests for admissions.

         [¶9] UPAP then filed a motion for summary judgment arguing first that UPAP had no duty to protect Linares from the unforeseeable actions of El Tacarajo and second that it was not vicariously liable for the negligent acts of El Tacarajo. Following a hearing, the trial court granted UPAP's motion for summary judgment and finding no just reason for delay, entered final judgment in favor of UPAP. Linares timely filed a notice of appeal on February 9, 2018.

         Discussion and Decision^[2]

         I. Standard of Review

         [¶10] When reviewing the grant or denial of summary judgment, we apply the same test as the trial court: summary judgment is appropriate only if the designated evidence shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Sedam v. 2JR Pizza Enterps., LLC, 84 N.E.3d 1174, 1176 (Ind. 2017). "A fact is 'material' if its resolution would affect the outcome of the case, and an issue is 'genuine' if a trier of fact is required to resolve the parties' differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences." Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).

         [¶11] Our review is limited to those facts designated to the trial court, T.R. 56(H), and we construe all facts and reasonable inferences drawn from those facts in favor of the non-moving party, Meredith v. Pence, 984 N.E.2d 1213, 1218 (Ind. 2013). On appeal, the non-moving party carries the burden of persuading us the grant of summary judgment was erroneous. Hughley, 15 N.E.3d at 1003. A grant of summary judgment will be affirmed if it is sustainable upon any theory supported by the designated evidence. Miller v. Danz, 36 N.E.3d 455, 456 (Ind. 2015).

         II. Summary Judgment

         A. Negligence

         [¶12] To prevail on his negligence claim, Linares must show: 1) UPAP owed a duty to Linares; 2) UPAP breached that duty by allowing its conduct to fall below the applicable standard of care; and 3) UPAP's breach of duty proximately caused a compensable injury to Linares. Smith v. Walsh Constr. Co. II, LLC, 95 N.E.3d 78, 84 (Ind.Ct.App. 2018), trans. denied. The element of duty is generally a question of law to be determined by the court, whereas the elements of breach and proximate cause generally present questions of fact ...