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Buckingham Management LLC v. Tri-Esco, Inc.

Court of Appeals of Indiana

December 9, 2019

Buckingham Management LLC, et al., Appellants-Defendants,
Tri-Esco, Inc., Appellee-Defendant.

          Appeal from the Tippecanoe Superior Court The Honorable Randy J. Williams, Judge Trial Court Cause No. 79D01-1701-CT-7

          Attorneys for Appellant Steven P. Lammers Allyse E. Wirkkala Indianapolis, Indiana

          Attorney for Appellee Andrew B. Miller Logansport, Indiana

          ALTICE, JUDGE.

         Case Summary

         [¶1] Buckingham Management, L.L.C., d/b/a Bradford Place Apartments (Bradford), appeals from the grant of summary judgment in favor of Tri-Esco, Inc. (Tri-Esco). Bradford claims that genuine issues of material fact exist as to whether Tri-Esco exercised reasonable care in performing its snow and ice removal duties after the plaintiff, Deborah Perez, slipped and fell on ice in Bradford's parking lot.

         [¶2] We affirm.

         Facts & Procedural History[1]

         [¶3] Bradford is an apartment complex in Lafayette that Buckingham manages. On February 23, 2015, at approximately 7:00 a.m., Perez drove to Bradford where her daughter lived. Perez was going to pick up her grandchildren and take them to school. When Perez arrived at Bradford and was exiting her vehicle in the parking lot, she noticed that the lot was "pretty much ice." Appellant's Appendix Vol. III at 47. Perez walked toward her daughter's residence, balancing herself against her vehicle. At some point, Perez slipped and fell and landed on her left arm and shoulder. As a result of the fall, Perez claimed that she was injured and was-and still is-in physical pain.

         [¶4] The record shows that on October 17, 2014, Bradford's owner-Lafayette Housing Associates (Lafayette Housing)-entered into a Services Agreement (Agreement) with Tri-Esco for snow removal. The Agreement provided that Tri-Esco was to remove snow and ice from the streets running through Bradford and the parking lot where Perez fell. If it snowed at least two inches, Tri-Esco was to clear the ice and snow at Bradford without an explicit request by Bradford's management to do so. The initial proposal and the "snow removal specifications" set forth in the Agreement provided that Tri-Esco would salt the driveways or parking lots only upon Bradford's specific request. Appellant's Appendix Vol. II at 48, 90, 113, 119. Another clause stated that "[s]alting shall be performed without request as warranted by ice/snow conditions for all communities. . . ." Id. at 70, 115, 165. Finally, the Agreement provided that the "[s]alting of streets will be authorized by the Maintenance Supervisor or Property Manager." Id. at 68, 113, 163.

         [¶5] It was undisputed that discretionary salting by Tri-Esco never occurred, and there was no requirement that Tri-Esco was to make periodic inspections of the property. In short, Tri-Esco salted only upon Bradford's express request that it do so. All provisions of the Agreement were initialed by a Tri-Esco representative.

         [¶6] The designated evidence established that Tri-Esco did not maintain any consistent presence on the premises, unlike Bradford's onsite maintenance crew. Bradford purchases approximately two-and-one-half tons of bagged salt each winter for its own snow and ice removal. Bradford has snow removal equipment and a salt applicator on the property for the management of its sidewalks.

         [¶7] On February 21, two days prior to Perez's fall, Tri-Esco removed snow at Bradford with pickup trucks and plows. That same day, Bradford employees applied nine bags of ice melt on the premises. Neither Tri-Esco nor Bradford engaged in additional snow removal or salt application on the premises after February 21, and Bradford did not request Tri-Esco to do so. Bradford conceded that Tri-Esco had no contractual obligation to be on site after the initial snow removal because the two-inch snowfall provision in the Agreement was not triggered. Bradford further admitted that it had no expectation that Tri-Esco would provide any snow removal or salting services on February 22 or 23.

         [¶8] On January 19, 2017, Perez filed a complaint against Bradford and Tri-Esco, seeking damages for her injuries, which included compensation for various surgeries. Perez alleged that she suffered injury due to the negligence and carelessness of the agents and/or employees of Bradford and Tri-Esco for failing to: (1) properly inspect and maintain the property in a safe condition; (2) put down salt; (3) remove snow and ice; and (4) warn of the ...

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