Articles Posted in Land Owner Liability

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.

A divided Indiana Court of Appeals recently found Michigan City immune from liability for a bicyclist’s injuries caused by a large pothole in a street. In Johnson v. City of Michigan City, Laura Johnson (“Johnson”) struck a large pothole in a street while riding her bicycle, which caused her to crash and suffer a tibial plateau fracture. Michigan City (“the City”) was responsible for maintaining the street. The City used a rating system to decide which streets to repair in any given year. The City’s engineering staff would decide which streets to repair based upon annual consulting reports that would evaluate 20% of the streets each year, with every street inspected every 5 years. The engineering staff would create a budget for resurfacing, the City would then contract with consultants to plan the projects, and the City’s Board of Works would approve individual projects for bidding. The engineering staff would also keep track of citizen complaints and consider them along with the street inspections in prioritizing street repairs. The City’s process for responding to complaints about individual potholes entailed the City’s Street Department receiving the complaint, preparing a work order, and then sending a crew to patch the pothole.

Prior to the accident in this case, the City had already decided the subject street needed to be resurfaced. The Board of Works had already approved the project for bidding, which was in process at the time of Johnson’s crash. In the month prior to Johnson’s crash, the City had also received two complaints about the street, one from a member of the LaPorte County Board of Commissioners describing the street as being in “dire shape,” and another complaint indicating the street had a “severe pothole problem,” which was causing cars to weave across lanes to avoid the potholes. The street was eventually resurfaced around 5-6 months after Johnson’s crash.

Johnson sued the City for negligence in causing her injuries. The City filed a motion for summary judgment arguing it was immune from liability under the Indiana Tort Claims Act, which grants immunity to governmental entities under some circumstances, including “[t]he performance of a discretionary function.” Indiana law distinguishes between planning and operational functions. Planning functions, which are afforded immunity, are “acts or omissions in the exercise of a legislative, judicial, or executive or planning function that involve formulation of basic policy decisions characterized by official judgment or discretion in weighing alternatives and choosing public policy.” Operational functions, such as the “execution or implementation of already formulated policy,” are not discretionary and are not afforded immunity. The purpose of governmental discretionary function immunity for planning and policy-making activities is to allow governments freedom to deal with difficult policy issues without the prospect of liability.

The Indiana Court of Appeals recently found in favor of a grocery store landlord in a premise liability claim for personal injuries arising out of a vehicle-pedestrian collision in a grocery store parking lot. In Poppe v. Angell Enterprises, Inc., Paul Poppe and Susan Poppe were struck by an intoxicated driver and injured as they exited a grocery store. When they exited the store, the Poppes walked through a marked crosswalk to reach their vehicle, which was parked in a handicapped parking spot. As they were walking, they saw a quickly approaching truck and tried to run to get out of the way; however, the truck pinned them against their vehicle. Angell Enterprises, Inc. (“Angell”) was the landlord of the grocery store and responsible for maintaining the grocery store parking lot. In their injury lawsuit filed against Angell and other parties, the Poppes alleged that Angell was liable in part for their injuries by the condition of the parking lot in “the funneling of pedestrian and vehicular traffic” into the crosswalk without “protective features” such as “bollards,” which are protective posts often used in areas with vehicular and pedestrian traffic.

At the time of the appeal in this case, Angell was the sole remaining defendant. To succeed in their claim against Angell, the Poppes were required to prove (1) Angell owed them a duty of care, (2) Angell breached that duty, and (3) Angell’s breach proximately caused their injuries. Whether a duty exists is a question of law for the court to decide, and absent a duty, there can be no breach and therefore no liability. Angell moved for summary judgment in court arguing that it owed the Poppes no duty and therefore was entitled to judgment as a matter of law. After a hearing, the trial court entered summary judgment in favor of Angell, and the Poppes appealed.

To decide whether Angell owed the Poppes a duty, the Indiana Court of Appeals was first required to decide whether to apply the landowner liability analytical framework in Burrell v. Meads (based upon Restatement (Second) of Torts Section 343) that applies when injuries result from a condition on land, or the analytical framework in Goodwin v. Yeakle’s Sports Bar & Grill, Inc. that applies when injuries result from the criminal acts of a third person. The Burrell analysis provides that a landowner is responsible for injuries to invitees resulting from a condition on land but only if the landowner knew, or should have known, of the condition and that it involved an unreasonable danger of harm, if the landowner should have expected its invitees would not realize the danger or protect themselves against it, and if the landowner failed to exercise reasonable care to protect its invitees. The Goodwin foreseeability analysis of duty in the case of criminal acts of third parties causing injuries focuses on the “broad type of plaintiff and harm involved, without regard to the facts of the actual occurrence,” and turns on “whether there is some probability or likelihood of harm that is serious enough to induce a reasonable person to take precautions to avoid it.”

The Indiana Supreme Court recently opined on a certified question from the United States District Court for the Northern District of Indiana that a Wal-Mart store manager could not be held liable for negligence for a trip-and-fall incident that occurred in the store on account of alleged failures to properly hire, train, and supervise Wal-Mart’s employees, as well as alleged failures to implement proper safety policies and procedures. In Branscomb v. Wal-Mart Stores East, L.P., the Court considered the certified question when Wal-Mart and the store manager sought to remove the case from state court to federal court under federal diversity jurisdiction upon the basis that the store manager, Clark, an Indiana citizen, was fraudulently joined to the lawsuit, was not a proper party to the case, and, therefore, his citizenship should be ignored, leaving only Wal-Mart, a non-Indiana citizen, as a defendant. After Wal-Mart removed the case to federal court on diversity grounds, Plaintiffs sought to remand the matter back to state court, alleging questions of fact existed as to the store manager’s role in the negligence giving rise to the Plaintiffs’ injuries. The federal court noted there was no clear precedent on the issue and, therefore, certified the question to the Indiana Supreme Court.

In analyzing the question, Indiana’s Supreme Court noted that although Indiana recognizes the tort of negligent hiring, training, and supervision, the tort is not applicable if the tortfeasor employee is acting in the course and scope of employment. Branscomb had suffered injuries when he tripped over a pallet in the Wal-Mart garden center, leading to his fall. Looking at the allegations of the case, the court observed that the facts made no suggestion that the individual who placed a pallet on the floor in Wal-Mart’s garden center had been acting outside the scope of their employment and the Plaintiffs had made no such allegation. Consequently, under these particular allegations, the court found the Plaintiffs could only possibly hold Wal-Mart liable for the personal injuries sustained for which they were seeking recovery in their lawsuit.

As for the other allegations—that the store manager failed to implement proper safety policies and procedures to prevent the trip-and-fall event—the store manager submitted an affidavit stating that managers in his position do not have any discretion to unilaterally determine safety policies and procedures for the store, which discretion is, instead, given by “managers from higher up the Wal-Mart corporate ladder.” The court then turned to Indiana premise liability law, which provides only a possessor, controller, or person entitled to “immediate occupation” of the land has a duty to business invitees, like Branscomb, to prevent foreseeable harm from dangers on the land that were known or should have been known by the person. Because the Wal-Mart store manager accused of negligence did not possess the land, was not in control of the land when the fall occurred (it was his day off), and there were others who were entitled to occupy the land with intent to control it while the manager was off duty, the manager did not owe Branscomb a duty at the time of his fall under Indiana law.

The Indiana Court of Appeals recently affirmed a trial court’s grant of summary judgment in favor of a cemetery in an Indiana premise liability case. In Lowrey v. SCI Funeral Servs., Inc., Donald Lowrey and Barbara Lowrey were visiting their daughter’s interment site at the Elm Ridge Funeral Home & Memorial Park in Muncie, Indiana. As the Lowreys were walking on a sidewalk around a mausoleum in an attempt to return to the cemetery’s parking lot, Donald attempted to step across the grassy corner of two perpendicular sidewalks stepping from one sidewalk to the other sidewalk. However, when Donald stepped his foot did not make it completely onto the intersecting sidewalk, and as a result, his ankle rolled and he fell to the ground, striking his wife Barbara, who also fell. Donald and Barbara were both injured as a result of their falls and they sued the cemetery.

In their personal injury lawsuit, the Lowreys alleged the cemetery was negligent in maintaining its sidewalks due to ground/soil erosion at the corner of the two intersecting sidewalks. In support of their claims, the Lowreys presented a report from a professional engineer who determined there was a two-to-three-inch drop-off from the sidewalk to the ground at the corner of the sidewalks, the erosion of the ground at the corner of the sidewalks was due to the direction of drainage, and the cemetery’s failure to keep the ground flush with the sidewalks caused Donald’s fall. The cemetery filed a motion for summary judgment arguing it was not negligent as a matter of law. After holding a hearing, the trial court granted the cemetery’s motion, and the Lowreys appealed.

Indiana has adopted Section 343 of the Restatement (Second) of Torts in premise liability cases, which provides that a property owner is liable for injuries to persons invited onto their property caused by a condition on their property if the owner (1) knew of, or should have discovered, the condition and that it involved an unreasonable danger, (2) should have expected persons invited onto the property would not realize the danger or protect themselves against it, and (3) the property owner failed to exercise reasonable care to protect such persons against the danger. However, under Section 343A of the Restatement, if a danger is known or obvious to an invitee, a property owner will not be liable unless the property owner should have anticipated the harm despite such knowledge or obviousness. Importantly, property owners are not insurers of their invitees’ safety, and the fact that a fall occurred is not sufficient in and of itself to prove negligence.

Governmental entities in Indiana have a duty to exercise reasonable care to keep roadways and sidewalks reasonably safe for travel. However, governmental entities also enjoy immunity under certain circumstances. In two recent cases dealing with governmental immunity for losses caused by temporary conditions of roadways resulting from weather, the Indiana Court of Appeals has questioned and raised concerns with the Indiana Supreme Court’s analytical framework set forth in the 2002 decision of Catt v. Bd. of Comm’rs of Knox Cty., 779 N.E. 2d 1 (Ind. 2002).

The plaintiff in Catt was injured when his vehicle slid and crashed into a ditch in Knox County caused by a washed-out culvert following a rainstorm the night before. The culvert had washed out many times prior to Catt’s car accident and had been repaired. The plaintiff alleged Knox County had negligently inspected, designed or maintained the roadway. However, the Indiana Supreme Court held Knox County, despite any negligence, was immune from liability under section 34-13-3-3(3) of the Indiana Tort Claims Act, 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). The Court framed the question as whether the washed-out culvert was due to weather and whether Knox County had the opportunity to repair the washed-out culvert and failed to do so (i.e., whether it was temporary versus permanent), regardless of any prior negligent inspection, design or maintenance or the frequency with which the culvert may have washed out on prior occasions. Since the washed-out culvert was caused by weather, Knox County had not received notice that it had washed out on this occasion prior to the collision, and Knox County was busy repairing other washed-out culverts and had previously repaired this one, the Court found the washed-out culvert was caused by weather and was a temporary condition.

In subsequent cases based on Catt, the Indiana Supreme Court has further explained that governmental immunity for temporary conditions resulting from weather applies during the “window of reasonable response” to the road condition. That window lasts until the condition stabilizes. That is, if the condition continues to worsen or is still evolving, the condition has not stabilized and is therefore deemed temporary, and the government is immune.

The Indiana Court of Appeals recently affirmed a trial court’s grant of summary judgment in favor of a property owner finding it had no duty to the traveling public as a result of tall grass on its property. In Reece v. Tyson Fresh Meats, Inc., a 92-year-old motorist, Harold Moistner (“Moistner”), pulled out into an intersection and collided with a motorcycle being driven by Walter Reece. Walter suffered catastrophic brain injuries in the motorcycle-vehicle collision. The investigating police officer completed a report and documented that tall grass on the northwest side of the intersection would have limited or prohibited Moistner’s view of Walter on his motorcycle. Judy Reece (“Reece”), individually and as Walter’s guardian, filed a lawsuit against various defendants, including Moistner and Tyson Fresh Meats, Inc. and Tyson Foods, Inc. (collectively “Tyson”), which owned a plant on the northwest side of the intersection. Tyson moved for summary judgment as to duty, which the trial court granted.

To prove negligence in Indiana, a plaintiff must show the defendant owed a duty to the plaintiff, the defendant breached that duty, and the breach proximately caused injuries to the plaintiff. Whether one party owes another party a duty is generally a question of law for the court to decide. If there is no duty owed by the defendant, there can be no breach and therefore no negligence.  Although Moistner certainly owed Reece a duty under the rules of the road applicable to motorists, whether a landowner owes a motorist operating a vehicle on a public roadway presents an interesting question for auto accident attorneys and the courts.

Under well-established Indiana law, a landowner owes a duty to the traveling public to exercise reasonable care in the use of his property so as not to interfere with the safety of public travelers on adjacent roadways. Courts have, for instance, found a duty of care on behalf of a railroad when its employees started a fire that caused smoke to blow over a nearby road obstructing the view of motorists, on behalf of a manufacturing plant that created a congestion of vehicles exiting the plant resulting in a collision, and on behalf of a landowner whose tree fell on a roadway. However, there is generally no liability for harm caused outside land by a natural condition on the land, except for unreasonable risks of harm from trees in urban areas, and even with respect to artificial conditions, there is no liability except for the creation of hazardous conditions that intrude upon a roadway. Thus, there is no duty where the activity is wholly contained on a landowner’s property.

As cold weather with the potential for snow and ice accumulations in store parking lots and on sidewalks approaches, the Indiana Court of Appeals’ recent decision in Pioneer Retail, LLC v. Jones is a reminder to businesses that despite not being an owner of the property, businesses can still be held liable for injuries to their invitees. In this case, the Indiana Court of Appeals upheld a significant jury verdict for a woman who suffered severe injuries in a fall on ice on a sidewalk outside a Wiseway Food grocery store in Crown Point, Indiana. Plaintiff Jane Jones (“Jones”) filed suit against Pioneer Retail, LLC (“Pioneer”), which owned and operated the Wiseway Food grocery store, the owner of the property where the Wiseway Food grocery store was located, a management company for the property, and a snow and ice removal contractor. Prior to trial, Pioneer filed a motion for summary judgment arguing it was entitled to judgment as a matter of law because it did not owe any duty of care to Jones. After conducting a hearing on the matter, the trial court denied Pioneer’s motion for summary judgment and the Court of Appeals denied its interlocutory appeal. The case proceeded to a jury trial and the jury returned a verdict in favor of Jones, with 25% fault apportioned to Pioneer and 75% fault apportioned to the other defendants.

Pioneer appealed and argued on appeal that the trial court erred by denying its motion for summary judgment. Pioneer argued it neither owned nor controlled the sidewalk where Jones fell. Pioneer argued the property owner was the exclusive owner of the sidewalk with ultimate responsibility for keeping it clear of snow and ice. Pioneer pointed to the fact that the property owner had contracted with a snow and ice removal contractor to clear snow and ice from the sidewalk.

Under Indiana law, to recover damages in a slip and fall negligence case, a plaintiff must show 1) the defendant owed a duty to the plaintiff, 2) the defendant breached that duty, and 3) the plaintiff’s injury was proximately caused by the defendant’s breach of duty. Landowners and possessors of land owe persons they invite onto their premises a duty to exercise reasonable care for their protection while they are on the premises. An inviter is subject to liability for physical harm caused to its invitees by a condition on land if it (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees; (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger.

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