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Articles Posted in Land Owner Liability

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.

The Indiana Court of Appeals recently reversed a trial court’s decision allowing a slip-and-fall claimant’s case to move forward against a governmental entity despite non-compliance with the Indiana Tort Claims Act (ITCA). In City of Columbus v. Londeree, the Plaintiff, Debra Londeree, slipped and fell on ice in the parking lot of the Foundation for Youth of Bartholomew County (FFY). The City of Columbus (City) provided snow removal services for FFY. After the fall, Debra filed an incident report with FFY. She then spoke with the City’s risk office and was told that the City had not received her incident report. A few weeks later, a City employee called Debra and told her the insurance company would contact her. However, the City’s insurance carrier, Tokio Marine Insurance, never contacted her. FFY’s insurance carrier, Cincinnati Insurance, did contact her, but the claims representative was not working for the City or its insurer and did not tell Debra, who was relying upon the claims representative, that she was working for the City or its insurer.

After Cincinnati Insurance denied the claim on behalf of FFY, Debra and her husband Dan filed a lawsuit against FFY and the City. Neither Debra nor Dan served a notice of tort claim on the City within 180 days from the fall as required by the ITCA. Under the ITCA, a notice of claims against a political subdivision, which includes cities, must be filed with the governing body of the political subdivision and the Indiana political subdivision risk management commission within one hundred eighty (180) days after the loss. Ind. Code § 34-13-3-8. A claimant must describe “in a short and plain statement the facts on which the claim is based,” including the circumstances which brought about the loss, the extent of the loss, the time and place the loss occurred, the names of all persons involved if known, the amount of the damages sought, and the residence of the person making the claim at the time of the loss and at the time of filing the notice. Ind. Code § 34-13-3-10.

The City filed a motion for summary judgment against Debra and Dan due to their non-compliance with the notice requirements of the ITCA. The trial court denied the City’s motion as to Debra finding there was a genuine issue of material fact as to whether the City should be estopped from raising the ITCA notice defense due to Debra’s understanding of the relationship between the City and FFY and whether her reliance on the representations of FFY and the City were reasonable. As to Dan’s derivative claim, the trial court granted the City’s motion based upon precedent providing that a spouse claiming loss of consortium must file a separate notice of tort claim.

The Indiana Court of Appeals recently resolved a dispute between an apartment complex property manager, Buckingham Management, L.L.C. d/b/a Bradford Place Apartments (Bradford), and a snow-and-ice removal contractor, Tri-Esco, Inc. (Tri-Esco), arising out of a slip and fall injury that Deborah Perez (Perez) suffered when she slipped and fell on ice at the Bradford Place Apartments in Lafayette, Indiana on February 23, 2015. According to a services agreement for snow removal, Tri-Esco was to remove snow and ice from the parking lot where Perez fell. If it snowed two inches or more, Tri-Esco was to clear ice and snow without an explicit request by Bradford to do so. While the agreement stated that Tri-Esco would otherwise perform salting without a request as warranted by ice and snow conditions, the agreement also had conflicting provisions providing that Tri-Esco would salt the parking lot only upon Bradford’s specific request and salting would be authorized by the maintenance supervisor or the property manager of the apartment complex.

Tri-Esco performed snow removal at the apartment complex on February 21, 2015, two days prior to Perez’s fall. Bradford, which had an on-site maintenance crew and snow and ice removal equipment, applied nine bags of ice melt. Neither Tri-Esco nor Bradford performed any additional snow and ice removal services in the two days prior to Perez’s fall. Bradford did not request that Tri-Esco perform any additional snow and ice removal services. It was undisputed that Tri-Esco never performed any discretionary salting at the apartment complex, was not required to make periodic inspections of the property, had no contractual obligation to be on site after the snow or ice removal services it performed on February 21, 2015 because the two-inch snowfall provision was not thereafter triggered, and Bradford had no expectation that Tri-Esco would provide any snow or ice removal services after February 21, 2015 on February 22 or February 23, 2015.

Perez filed a lawsuit for the personal injuries she suffered as a result of her fall on ice, which necessitated various surgeries. Tri-Esco moved for summary judgment. Tri-Esco argued that it had no duty to apply salt to the parking lot during the two days prior to Perez’s fall; there had been no additional snowfall and no explicit request by Bradford to provide additional services and it was not obligated to preemptively inspect the property or provide services. The trial court granted Tri-Esco’s motion for summary judgment, and Bradford appealed.

Slip and Fall Accident
The Tri-State’s first accumulating snow of the season is melting. The wintry conditions we just experienced inevitably lead to slips and falls, some of which will lead to traumatic brain injuries, neck and back injuries, broken ankles and wrists, fractured hips, and muscle and ligament tears, strains and sprains.

For many who slip and fall, their first emotion is embarrassment and their first instinct is to blame themselves. After-all, we know that we learned to walk long ago and the idea that we have somehow failed to stay on our feet as an adult perhaps suggests some sort of weakness or failure on our part. Similarly, many premises owners will be quick to claim they cannot be at fault for folks who venture out into wintry conditions and happen to slip and fall. Thus, for many guests and premises owners alike there is a perception that a premises owner will not be liable when a guest does slip and fall in wintry conditions. Reaching such a conclusion without consideration of Indiana law and surrounding circumstances could be costly.

Personal injury lawyers in Indiana have several significant decisions to rely upon when making out a case of negligence against a premises owner for a winter-weather related slip and fall.  The Indiana Court of Appeals proclaimed in Rossow v. Jones that:

Many people may already associate premises liability claims with what is referred to as slip and fall injuries. However, these claims can involve a lot more than slipping on a store floor and getting hurt. In Indiana, there are a wide variety of situations that can lead to a premises liability case.

If a store or establishment has the ability and means to protect against a preventable injury, that place has the legal responsibility to enforce those protections. This can mean ensuring an uneven sidewalk is fixed or labeled as broken or uneven. If you break an ankle on an uneven sidewalk, you could have a a viable claim for monetary damages.

Banisters and sidewalks can be the source of injury just as easily as a store floor that is wet without a warning sign. If a banister leading up the stairs — inside or outside — breaks and gives way, an unexpected fall can lead to serious injuries. Also, a single step in a state of disrepair or otherwise unsafe can collapse and also lead to serious injuries.

Shopping at stores is a regular part of life for most people. These visits have become so common that many may take for granted that they will be safe while visiting. Unfortunately, this is not always the case as store patrons are hurt every day in incidents that could have been prevented had the store taken certain steps. The injuries that could occur in stores run the gamut but include tripping or slipping or having an object fall upon a shopper, inflicting harm.

Sometimes the injuries are minor and don’t disrupt the life of the shopper. Other times, however, they are catastrophic and leave the person unsure of how they will complete tasks they once took for granted. For people in the latter situation, how to cover costs associated with everyday life may become an issue. Depending on the circumstances surrounding their injury it is possible these individuals could decide to file a premises liability lawsuit against the store where they were hurt.

To succeed in this type of lawsuit several things must be established. The first is that the owner of the store either knew or, in the alternative, should have known that there was a dangerous condition located on the store property. Second, that the owner of the store did not adequately maintain the store property or inspect it regularly. Next, it must be shown that if that dangerous condition did not exist, the patron would not have been hurt and the injury suffered by the shopper was due to that dangerous condition. Last, the injured customer must show that he or she suffered actual “damages” due to it.

When most people think about devastating or life-changing injuries, their minds may naturally gravitate towards car accidents. However, it may surprise Indiana residents to realize falls related to premises liability situations are the number one cause of injuries. Injuries related to premises liability should be taken seriously and dealt with properly to ensure the best recover and the least amount of financial hardship.

The first step to evaluating if compensation for a slip and fall injury is possible is to understand what constitutes premises liability. Slipping and falling on a floor that is wet or slippery and not properly labeled or being injured by a broken step at a store certainly may be premises liability. However, many may not realize that being bitten by a dog and suffering injuries can also lead to a premises liability case.

A slip and fall premises liability situation can lead to mounting medical bills. Also, recovery time or rehabilitative needs may mean significant time away from work. If the injury has led to the death of a loved one, the costs of a funeral may be financially devastating also.

Winter Premises Liability in IndianaThough southwestern Indiana has dodged snow so far, temperatures are falling and icy conditions increasing. Wintry conditions inevitably lead to slips and falls, some of which will lead to serious head, neck and back injuries, broken bones, and muscle and ligament tears, strains and sprains.For many who slip and fall, their first emotion is embarrassment and their first instinct is to blame themselves. Also, many premises owners will be quick to claim they cannot be at fault for folks who venture out into wintry conditions and happen to slip and fall. Accordingly, for many guests and premises owners alike there is a perception that a premises owner will not be liable when a guest does slip and fall in wintry conditions. Reaching such a conclusion without consideration of Indiana law and surrounding circumstances could be costly.

Indiana law on the hazards presented by the natural accumulation of snow and ice is clear:

a landlord does have a duty of reasonable care that the common ways and areas, or areas over which he has reserved control, are reasonably fit and that hazards created through a natural accumulation of ice and snow are not beyond the purview of that duty.

People are injured everyday throughout the country. Depending on the circumstances surrounding an injury it is possible that legal action could be taken against those whose negligence contributed to the accident occurring. This is true regardless of where the incident occurred— even if it happens at a school.

The parents of some Indiana teens may be looking into pursuing this route. Seventeen high school students were hurt when the orchestra pit cover they were performing on collapsed. It sent the students falling into the orchestra pit.

Prior to the incident the original orchestra pit was removed. Someone who worked at the school then purchased materials and made a new one. A header that was a part of the new cover was not secured the way it needed to be to the stage. In addition, the metal supports it needed to hold it up were not used.

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