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 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 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.

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.

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 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.