German A. Linares, Appellant-Plaintiff,
El Tacarajo and U-Pull-And-Pay, LLC d/b/a Pic A Part, Appellees-Defendants.
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
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
Summary and Issue
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.
and Procedural History
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
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.
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.
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.
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.
On June 15, 2016, Linares filed his complaint against
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.
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.
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.
Standard of Review
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).
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).
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