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Converse v. Elkhart General Hospital, Inc.

Court of Appeals of Indiana

March 8, 2019

Michelle Converse, Appellant-Plaintiff,
v.
Elkhart General Hospital, Inc., Appellee-Defendant.

          Appeal 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

          ROBB, JUDGE.

         Case Summary and Issue

         [¶1] 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.

         Facts and Procedural History

         [¶2] 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.

         [¶3] 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.

         [¶4] 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.

         Discussion and Decision

         I. Standard of Review

         [¶5] 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.

         [¶6] 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).

         II. Premises Liability

         [¶7] 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).

         [¶8] 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.

         [¶9] 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).

         [¶10] "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. Martin, ...


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