from the Elkhart Circuit Court Cause No. 20C01-1307-CT-119
The Honorable Michael A. Christofeno, Judge
Attorneys for Appellant Daniel H. Pfeifer James P. Barth
Pfeifer, Morgan & Stesiak South Bend, Indiana
Attorneys for Appellee Edward L. Murphy, Jr. Lauren R.
Deitrich Rothberg Logan & Warsco LLP Fort Wayne, Indiana
Summary and Issue
Michelle Converse appeals the trial court's grant of
summary judgment in favor of Elkhart General Hospital, Inc.
on her claim of negligence. Converse presents only one issue
for our review, whether the trial court erred when it granted
summary judgment in favor of Elkhart General. Concluding the
trial court erred in granting summary judgment in favor of
Elkhart General, we reverse and remand.
and Procedural History
In early 2012, Converse was an employee of American Nursing
Care ("ANC"), which conducted its home health care
business from a building owned by Elkhart General. ANC had
leased the building since July 1, 2011, and Converse went to
the location two to three times per week to pick up or drop
off paperwork and to attend case conferences before
dismissing patients. ANC instructed all its employees to use
the side door to enter and exit the building.
After one such conference on April 10, 2012, Converse walked
from the side door to her car in the parking lot around 9:25
a.m. Converse was returning to the building on the clear,
sunny morning when she spotted another nurse, Dale Fish, with
whom she needed to speak. Converse yelled Fish's name and
attempted to run after him but fell on the way to Fish's
car. Converse claims she lost her balance when she stepped on
a landscaping rock that was loose on the sidewalk, hit the
raised concrete area adjacent to the sidewalk, stepped on
another rock, and fell. Converse injured her arm in the fall
and required several surgeries. Converse claimed that she did
not see the rock prior to her fall and had never noticed any
rocks on the sidewalk before but that she observed scattered
landscaping rocks on the sidewalk "here and there"
after the fall. Appellant's Appendix, Volume 2 at 134.
On July 22, 2013, Converse filed a complaint for damages
against Elkhart General, alleging negligence on the basis of
premises liability. Elkhart General moved for summary
judgment on March 5, 2018. The trial court heard arguments on
May 14 and granted summary judgment in favor of Elkhart
General on June 21. Converse now appeals.
Standard of Review
We review a summary judgment order with the same standard
applied by the trial court. City of Lawrence Util. Serv.
Bd. v. Curry, 68 N.E.3d 581, 585 (Ind. 2017). Summary
judgment is appropriate only when "the designated
evidentiary matter shows that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." Ind. Trial Rule 56(C). In
the summary judgment context, we are not bound by the trial
court's specific findings of fact and conclusions of law.
Rice v. Strunk, 670 N.E.2d 1280, 1283 (Ind. 1996).
The trial court's findings and conclusions merely aid our
review by providing us with a statement of reasons for the
trial court's actions. Id.
Moreover, 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 v. State, 15 N.E.3d
1000, 1003 (Ind. 2014). 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 a claim of negligence, Converse must establish:
(1) Elkhart General owed a duty to Converse; (2) Elkhart
General breached that duty by allowing its conduct to fall
below the applicable standard of care; and (3) Elkhart
General's breach of duty proximately caused a compensable
injury to Converse. Rhodes v. Wright, 805 N.E.2d
382, 385 (Ind. 2004).
Before proceeding to the merits of the parties'
arguments, however, we pause to emphasize Indiana's
unique summary judgment standard. Contrary to the federal
standard which permits the moving party to merely show the
party carrying the burden of proof lacks evidence on a
necessary element, Indiana law requires the moving party to
"affirmatively negate an opponent's claim."
Hughley, 15 N.E.3d at 1003 (quotation omitted). Or,
to put it more simply, Indiana law requires a movant to prove
their opponent would lose, rather than simply showing their
opponent is unlikely to win. If, and only if, the movant
sustains this burden does the burden shift to the opponent to
set forth specific facts showing that there is a genuine
issue of material fact. Markley Enters., Inc. v.
Grover, 716 N.E.2d 559, 564 (Ind.Ct.App. 1999). If the
movant fails in their initial burden or the non-movant
successfully designates evidence establishing a genuine issue
of material fact, summary judgment must be denied.
Hughley, 15 N.E.3d at 1004 (noting "Indiana
consciously errs on the side of letting marginal cases
proceed to trial on the merits, rather than risk
short-circuiting meritorious claims.") And, with this
"more onerous burden[, ]" id. at 1003, in
mind, we turn to the parties' arguments.
Converse's status at the time of the accident was an
invitee. Under Indiana premises liability law, a landowner
owes the highest duty to an invitee: the duty to exercise
reasonable care for his protection while he is on the
landowner's premises. Burrell v. Meads, 569
N.E.2d 637, 639-40 (Ind. 1991). This duty extends to keeping
a parking lot safe and providing a safe and suitable means of
ingress and egress. Vernon v. Kroger Co., 712 N.E.2d
976, 979 (Ind. 1999).
"When a physical injury occurs as a result of a
condition on the land, the three elements described in
Restatement (Second) of Torts Section 343, accurately
describe the landowner-invitee duty." Rogers v.