Articles Posted in Land Owner Liability

The Indiana Supreme Court recently issued a decision in a case involving a woman who was injured while swimming in a health and fitness center’s pool. The case, Pennington v. Memorial Hospital of South Bend, Inc., raised several issues of premises liability and negligence against the pool owner, operator, and designers.

The plaintiff, Dr. Jennifer Pennington, was a member of the fitness center owned and operated by Memorial Hospital of South Bend, doing business as Beacon Health and Fitness. The fitness center had a rectangular, multi-purpose swimming pool that was designed by Panzica Building Corporation and Spear Corporation. The pool had a long ramp and a concrete “wing-wall” on one side, separating the ramp from the main swimming area. The wing-wall had a gap at the bottom, allowing swimmers to pass through, and another shorter wing-wall at the end of the pool near the entry steps. The wing-walls were designed to sit at the pool’s water level through an automatic leveling mechanism. The ends of the wing-walls were unpadded, and no floating lane divider was placed across the gap. However, backstroke pennants were strung above and across the width of the pool approximately fifteen feet from each end.

Dr. Pennington visited the pool during its first week of operation and swam several laps of various strokes in the lane adjacent to the wing-walls. After switching from freestyle to backstroke, she collided with the corner of the wing-wall by the entry steps, causing her injury.

The Indiana Court of Appeals recently revived a personal injury claim involving the legal doctrine of res ipsa loquitur and its applicability in the premise liability context. In Isgrig v. Trustees of Indiana University, Kiera Isgrig (“Isgrig”) was injured while studying in a building at Indiana University Bloomington (IU) when a window, which she and her friends had not tampered with, fell out of the wall and landed on Isgrig’s head, leaving shattered glass over her and the table she was sitting at. An IU employee came and examined the window. The employee noted the window could be partially opened when in its casing and other than two broken sash springs, which the employee believed would not have caused the window to fall out of its casing without warning, the employee did not find any other damage to the window and no reason to explain what happened, other than possible tampering at some point prior to the incident. The last time IU had performed maintenance on the window was around a year prior when it repaired the window’s blinds. IU did not perform any preventative, as opposed to reactive, maintenance on the window.

Isgrig filed a lawsuit against IU for her injuries relying on the legal doctrine of res ipsa loquitur, which translated from Latin means “the thing speaks for itself.” The doctrine allows an inference of negligence in situations where the nature of the incident is such that the person having control over the situation was likely negligent, even though no particular negligent act can be shown. To get an inference of negligence against a defendant with res ipsa loquitur in Indiana, a claimant must show (1) that the injuring instrumentality was within the exclusive management and control of the defendant, and (2) the incident is of the type that ordinarily does not happen if those who have management or control exercise proper care. As to the element of exclusive control, it is exclusive control over the injuring instrumentality at the time of the alleged negligent act or injury, with the focus on who had the right or power to control and the opportunity to exercise the control.

Here, in response to Isgrig’s lawsuit, IU moved for summary judgment in the trial court arguing that even with res ipsa loquitur Isgrig still had to establish its liability under premise liability law by proving it had actual or constructive knowledge of the dangerous condition of the window, which it argued it did not have, and that it did not otherwise have exclusive control of the window, making res ipsa loquitur inapplicable. The trial court ruled in favor of IU and Isgrig appealed.

The Indiana Court of Appeals recently reviewed Indiana’s “firefighter’s rule,” ultimately ruling in favor of a firefighter injured while responding to a building fire in Fort Wayne, Indiana. In Dolsen v. VeoRide, Inc., firefighter Richard Dolsen, Jr. (“Dolsen”) responded to a fire at a building owned by Sweet Real Estate – City Center, LLC (“Sweet”) and leased to VeoRide, Inc. (“VeoRide”). VeoRide, an electric scooter company, stored scooters, batteries, and battery equipment at the building. One of the batteries ignited, causing the fire. While no VeoRide employees were at the building when the fire started, VeoRide and Sweet employees were notified of the fire and knew firefighters were responding to the fire. Dolsen, who had never been in the building before, could not see as he entered the building due to a lack of light and smoke, and as he was moving around the perimeter of the building, he fell through an open wall comprised of bare wooden studs, falling into a stairwell. At the time of the incident, Dolsen had a radio, such that any warning sent by VeoRide or Sweet could have quickly and easily been conveyed to him. Dolsen testified over his career there had been many occasions where commercial building owners or tenants would alert the fire department about potential dangers inside buildings, such as holes in floors.

Dolsen filed a personal injury lawsuit against VeoRide and Sweet alleging negligence in the handling of the batteries at the building and in failing to warn Dolsen about the opening in the wall. VeoRide filed a motion for summary judgment arguing Dolsen’s claims were barred by Indiana’s firefighter’s rule. Sweet filed a motion for summary judgment arguing it could not be held liable since it had given full possession and control of the building to VeoRide. The trial court granted both motions for summary judgment, finding Dolsen’s claims were barred by Indiana’s firefighter’s rule. Dolsen appealed the trial court’s order only with respect to VeoRide.

On appeal, the Court of Appeals reviewed Indiana Supreme Court precedent on Indiana’s firefighter’s rule. According to that precedent, Indiana’s firefighter’s rule bars any claim by a professional emergency responder for any negligent conduct that created the emergency responded to. As such, with regards to Dolsen’s claim arising from any negligence by VeoRide in handling the battery that caused the fire, the Court held that such claim was barred by the firefighter’s rule. However, as noted by the Court, Indiana’s firefighter’s rule does not bar a claim when an injury is caused by conduct separate and apart from the conduct that contributed to the emergency, even if that conduct occurred prior to the emergency responder arriving on the scene. Here, Dolsen also alleged VeoRide was negligent in failing to warn him of the dangers associated with the open wall next to the stairwell. The Court found such claim was separate from and independent of any negligent conduct causing the fire, and therefore, was not barred by Indiana’s firefighter’s rule.

The Indiana Court of Appeals recently affirmed a trial court’s grant of summary judgment in favor of a homeowner in a claim against the homeowner arising from a guest’s fall on an icy sidewalk adjacent to the homeowner’s property. In Stanley v. Burns, Andrea Burns (Burns) worked for a direct sales company and invited numerous women on her team, including Erin Harrell Stanley (“Stanley”), to her home to watch a planned YouTube live corporate broadcast. On the night of the broadcast in December 2019, the weather had been “frosty,” but it had not snowed. Burns did not check the driveway or sidewalk at her home to see whether they were safe for her guests. Stanley arrived at Burns’ home around 7:20 P.M. and at that time it was dark outside. Since Burns’ driveway was full, Stanley parked on the street. Stanley got out of her vehicle and walked “three or four steps” on the road-side sidewalk towards Burns’ driveway and slipped and fell on ice, injuring her left leg. Stanley filed a premise liability lawsuit against Burns and her husband.

To prevail in a negligence claim, a plaintiff must show (1) a duty owed by the defendant to the plaintiff, (2) breach of that duty, and (3) damages proximately caused by the breach of duty. Absent a duty, there can be no negligence. Burns moved for summary judgment in the trial court, designating as evidence Stanley’s deposition and a plat of survey of Burns’ property to show that the road-side sidewalk in front of Burns’ house was outside Burns’ property. Burns argued she was entitled to summary judgment because she had no common law duty to clear the public sidewalk where Stanley fell and the local ordinance that required her to clear the public sidewalk did not create a private right of action that Stanley could enforce against her. The trial court agreed and granted summary judgment in favor of Burns, and Stanley appealed that decision.

On appeal, the Indiana Court of Appeals first addressed Stanley’s argument that Burns had a common law duty to clear the sidewalk because Burns “controlled the premises.” Under Section 343 of the Second Restatement of Torts, which Indiana had adopted, a possessor of land is subject to liability for physical harm to invitees caused by a condition on the land when the possessor (a) knows or by the exercise of reasonable care would discover the condition, and should realize it involves an unreasonable risk of harm to such invitees, (b) should expect that such invitees will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect such invitees against the danger. However, the Court of Appeals noted that Section 343 of the Second Restatement of Torts does not define the scope of “the land” or what it means to be a “possessor of land,” there was no genuine issue of material fact that Stanley fell on the road-side public sidewalk that abutted, but was outside of, Burns’ property, and under well-established Indiana law, an owner or occupant of property abutting a public street or sidewalk has no duty to clear such streets or sidewalks of snow or ice. Accordingly, the Court found Burns did not owe any common law duty to Stanley to clear the sidewalk of ice.

The Indiana Court of Appeals recently reversed a trial court’s grant of summary judgment in favor of a music venue security company alleged to have caused a crowd surfer’s injuries in a fall. In Wiley v. ESG Sec., Inc., Seth Wiley (Wiley), a minor at the time, was crowd surfing during a “punk rock” concert at the Murat in Indianapolis, Indiana. ESG Security, Inc. (ESG) was contracted by Live Nation to provide security at the concert. “Bicycle racks” were placed between the stage and the crowd with several ESG personnel stationed between the racks and the stage. Various concertgoers were crowd surfing during the concert, including Wiley on three or four occasions prior to his fall. On prior occasions, ESG personnel helped Wiley to the ground after he reached the front of the audience and was passed over the racks. However, the last time he crowd surfed the crowd moved him to the front of the audience when there were no ESG personnel to support him down, as they were attending to another concertgoer, and he fell and sustained injuries.

Wiley sued various parties for his personal injuries, including ESG. Under Indiana law, to recover in a negligence case, a plaintiff must show (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, and (3) the defendant’s breach proximately caused the plaintiff’s injuries. Generally, the existence of a duty is a question of law for courts to decide.

ESG filed a motion for summary judgment arguing it was entitled to judgment as a matter of law as it did not owe Wiley a duty of care and Wiley incurred the risk of his injuries. While the contract between ESG and Live Nation stated that ESG would “exert reasonable… efforts to protect all persons who enter [the venue] from… personal injury from any causes whatsoever,” ESG argued that language only applied to risks of which a concertgoer would not be aware or warned against and such did not mean ESG had to protect concertgoers from their own negligent acts. There were signs posted throughout the venue, and an audio message repeatedly played, that crowd surfing was prohibited and those who crowd surfed did so at their own risk and were subject to expulsion.

The Indiana Court of Appeals recently affirmed a jury’s $510,000 award in favor of an injured woman in a slip-and-fall case in Indianapolis, Indiana. In Mastellone v. Young Men’s Christian Ass’n of Greater Indianapolis, Jacqueline Mastellone (“Mastellone”) slipped and fell at an Indianapolis YMCA as she was walking back to a locker room after a swim class. The area where she fell did not have a slip-resistant mat. As part of a facility upgrade, the YMCA later replaced the flooring where Mastellone fell. Mastellone dislocated and fractured her left shoulder in the fall, which required a shoulder replacement, and she sued the YMCA for her injuries and damages.

The jury returned a verdict in favor of Mastellone calculating her total damages at $850,000, which was reduced to $510,000 based upon finding her 40% at fault and the YMCA 60% at fault. Prior to trial, the YMCA filed a motion in limine to exclude evidence as to the new floor installation. The trial court ordered it would allow evidence of the new floor installation, but it would not allow evidence that the flooring was changed. During trial, when Mastellone’s counsel asked a YMCA employee whether the flooring had been replaced, YMCA’s counsel objected, arguing the evidence was irrelevant and prejudicial. After the trial court indicated it would allow the question, YMCA’s counsel moved for a mistrial, which the trial court denied. In response to the question from Mastellone’s counsel, the YMCA employee testified the flooring had been replaced. YMCA’s counsel then elicited testimony that the flooring was not changed due to the fall but a facility upgrade. After the jury had reached a verdict but before reentering the courtroom, YMCA’s counsel then moved for a second mistrial after learning a piece of the flooring where Mastellone fell had not been sent back to the jury room. The trial court denied the second motion for mistrial because the jury had the opportunity to examine the flooring after it had been admitted as evidence.

After the jury verdict was read, the trial court stated it would enter judgement on the verdict, and then the trial court noted the entry of judgment on the docket, or chronological case summary (CCS). However, three days after the verdict, the trial court sua sponte (i.e., of its own accord) issued an Order Reconsidering Motion for Mistrial setting aside the jury’s verdict and the judgement. In its Order Reconsidering Motion for Mistrial, the trial court did not state which of the two motions for mistrial it had reconsidered, and it did not provide any reasoning. Mastellone appealed the Order Reconsidering Motion for Mistrial and the YMCA cross appealed arguing the trial court erred in denying its two mistrial motions and the verdict was excessive.

The Indiana Court of Appeals recently held that a duplex rental owner could not be held liable for injuries to a child attacked by a lessee’s dog. In Marchino as next friend Marchino v. Stines, Rex Lott (“Lott”) owned and rented a duplex property in Indianapolis, Indiana. Matthew Marchino (“Marchino”) and his family, including his son, Marcellus Marchino (“Marcellus”), rented one side of the duplex and Woody Stines (“Stines”) rented the other side. Stines had a pit bull named Boy (“Boy”). Prior to the dog bite attack in this case, Lott had been told that Boy had chased a neighbor to the bus stop and that Boy had also nipped a maintenance man fixing a toilet in Stines’ home. While Lott had thereafter asked Stines to remove the dog, Lott did not press Stines when Stines failed to remove Boy because Stines was suffering from leukemia. Unfortunately, Boy got loose one day and attacked Marcellus as Marchino and Marcellus were leaving their home.

Marchino filed a negligence lawsuit against Stines and Lott. To establish negligence in Indiana, a plaintiff must show a duty owed to the plaintiff by the defendant, the defendant’s breach of that duty by failing to comply with the requisite standard of care, and injuries proximately caused by the breach.

Lott filed a motion for summary judgment arguing he had no duty of care towards Marcellus and could not be held liable for the injuries Boy caused because Stines had leased the property and had exclusive possession and control of the property. In response, Marchino argued Lott knew of Boy’s dangerous propensities (a question of fact conceded by Lott), and Lott had retained control of the premises giving rise to a duty of care to Marcellus. As to control, Marchino pointed to the lease agreement between Stines and Lott, which provided Lott retained a right of inspection and no pets were allowed on the property unless approved by Lott. After a hearing, the trial court granted Lott’s motion for summary judgment finding Lott owed no duty of reasonable care to Marcellus.

We previously wrote about the Indiana Court of Appeals opinion in Ladra v. State affirming the trial court’s grant of summary judgment in favor of the State of Indiana and the Indiana Department of Transportation (collectively “INDOT”) finding INDOT immune from liability in a lawsuit brought by Tracy Ladra (“Ladra”), who suffered injuries when her vehicle hydroplaned on a flooded portion of I-94. In the case, there was evidence INDOT was aware of a defect in the highway’s drainage system that would cause consistent flooding in the highway. However, the Indiana Court of Appeals (reluctantly so) relied on Indiana Supreme Court precedent in Catt v. Bd. of Comm’rs of Knox Cty., 779 N.E. 2d 1 (Ind. 2002), which characterized any negligence of the government in the design and maintenance of a thoroughfare and its knowledge of past incidents as irrelevant, and held INDOT was immune based upon the Indiana Tort Claims Act (ITCA), which provides “[a] governmental entity… is not liable if a loss results from… [t]he temporary condition of a public thoroughfare… that results from weather.” Ind. Code § 34-13-3-3(3).

In the same blog, we also wrote about the Indiana Court of Appeals opinion in Staat v. Indiana Dep’t of Transp., in which Chad Staat and Julie Statt (collectively the “Staats”) filed a personal injury lawsuit against INDOT arising from injuries Chad sustained when his vehicle hydroplaned on accumulated, pooling, or puddled water on I-74, left the roadway, and collided with a tree. In Staat, as in Ladra, the trial court granted summary judgment in favor of INDOT finding INDOT immune from liability for a temporary condition resulting from weather under the ITCA. However, in Staat, unlike in Ladra, the Court of Appeals reversed, finding there was a genuine issue of material fact as to whether the roadway condition was temporary so as to entitle INDOT to immunity, and INDOT had not otherwise negated its duty as a matter of law.

The Indiana Supreme Court granted transfer in Ladra and in a divided opinion modified its rule in Catt and reversed the trial court’s grant of summary judgment in favor of INDOT on the issue of immunity. The Court’s opinion first reviewed the common-law origins of sovereign immunity, the abrogation of such by Indiana courts, and legislative codification of governmental immunity in the ITCA; second, it analyzed and modified the rule in Catt; third, it discussed why legislative acquiescence and stare decisis do not forbid the Court’s modification of the rule in Catt, with discussion of policy arguments advanced by INDOT; and last, it analyzed the Court’s new rule as to the facts in Ladra, finding a genuine issue of material fact under the Court’s new rule. Under the Court’s new rule, “when the government knows of an existing defect in a public thoroughfare that manifests during recurring weather conditions, and when it has ample opportunity to respond, immunity does not apply simply because the defect manifests during inclement weather.”

In Griffin v. Menard, Inc., Walter Griffin and his wife (the “Griffins”) were shopping for a sink at Menards. When they found a sink they liked, Walter reached for the sink box on the shelf and when he did, the bottom of the box opened and the sink fell on him, resulting in injuries. The Griffins sued Menards for premises liability and loss of consortium. Menards filed a motion for summary judgment arguing it had no actual or constructive knowledge of the dangerous condition of the sink box and therefore was not liable as a matter of law. The trial court granted summary judgment for Menards, and the Griffins appealed. The Indiana Court of Appeals reversed, finding Menards had failed to show no genuine issue of material fact existed as to whether Menards had actual or constructive knowledge and whether the doctrine of res ipsa loquitur applied.

Indiana law provides that landowners owe the highest duty of care to invitees to exercise reasonable care for their protection while they are on a landowner’s premises. However, landowners are only liable to invitees if they know or should know of an unreasonably dangerous condition, should expect that invitees will not discover the danger or will fail to protect themselves against it, and fail to exercise reasonable care to protect invitees against the danger. Landowners are not insurers of their invitee’s safety. Landowners must have actual or constructive knowledge of the dangerous condition causing injury. Indiana law deems landowners to have constructive knowledge of dangerous conditions on their premises when those conditions have existed for a sufficient period of time that they would have been discovered in the exercise of ordinary care.

Res ispa loquitur means “the thing speaks for itself” and is a rule of evidence allowing an inference of negligence based upon the unusual circumstances of an injury. The main question as to application of the doctrine is whether the injury probably resulted from a defendant’s negligence as opposed to another cause. To obtain an inference of negligence under the doctrine of res ipsa loquitur, a plaintiff must show (1) the injuring instrumentality was within the exclusive management and control of the defendant, and (2) the incident would not have occurred unless those having exclusive management and control failed to exercise reasonable care.

We previously wrote about the Indiana Court of Appeals decision in Reece v. Tyson Fresh Meats, Inc. affirming a trial court’s grant of summary judgment in favor of a property owner finding the property owner owed no duty to the traveling public as a result of tall grass on its property. In Reece, Judy Reece (“Reece”), as wife and guardian of Walter Reece, sued Tyson Fresh Meats, Inc. and Tyson Foods, Inc. (collectively “Tyson”) because tall grass on Tyson’s property impeded the view of a driver, Harold Moistner, who pulled out into an intersection causing a collision between himself and Walter Reece. Walter Reece suffered catastrophic brain injuries in the collision.

The Indiana Supreme Court granted transfer in Reece and adopted a bright-line rule: landowners owe a duty to passing motorists on adjacent highways not to create hazardous conditions that visit themselves upon the roadway; but when a land use or condition that may impose a visual obstruction is wholly contained on a landowner’s property, there is no duty to the traveling public. Reece v. Tyson Fresh Meats, Inc., 173 N.E.3d 1031, 1034, 1041 (Ind. 2021).

In adopting this bright-line rule, the Indiana Supreme Court surveyed numerous prior landowner negligence cases. Factors noted in the prior cases included harms caused by conditions contained on land and those intruding upon the roadway, natural versus artificial conditions, and population density. As to its bright-line rule, the Court specifically noted that Indiana’s state and local legislatures could enact laws imposing different duties on landowners. The Court also noted that its decision did not apply to situations where a motorist comes in contact with a condition wholly contained on the land.

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