The Indiana Court of Appeals recently found in favor of a restaurant and winery in an Indiana slip-and-fall case. In Cooper’s Hawk Indianapolis, LLC v. Ray, the Plaintiff, Katherine Ray, while at Cooper’s Hawk Winery & Restaurant (“Cooper’s Hawk”), went to use the restroom and slipped and fell on her way out of the restroom door. Ray filed a complaint against Cooper’s Hawk alleging she slipped and fell on an accumulation of water and was injured as a result of her fall. Cooper’s Hawk filed a motion for summary judgment, which the trial court denied, arguing that Cooper’s Hawk did not have actual or constructive notice of the defective condition that allegedly caused Ray to fall and that any breach of any duty was not the proximate cause of Ray’s injuries.
Under Indiana premises liability law, property owners must maintain their property in a reasonably safe condition for business invitees. A possessor of land 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. An inviter must exercise reasonable care to discover defects or dangerous conditions on the premises, and will be charged with knowledge of, and held liable for injuries that result from, any dangerous conditions that could have been discovered in the exercise of reasonable care. However, inviters are not insurers of their invitees’ safety and must be shown to have actual or constructive knowledge of the dangerous conditions on their premises before liability will attach. Negligence cannot be inferred from the mere fact of a fall and constructive knowledge can only be found if it is shown that a condition had existed for such a length of time that under the circumstances it would have been discovered if the inviter or its agents or employees had used ordinary care.
In this case, it was raining outside around the time of Ray’s fall. Ray testified she did not observe anything, any water, or any wet spots on her way to the restroom. She did not observe any slippery substance or wet spot outside the women’s restroom in the hallway after she exited the restroom. She did not feel any liquid substance or anything like that on her body after she fell. She did not see any wetness on her clothing. While Ray’s husband testified that after EMS arrived he noticed that one of the EMS personnel had a damp knee, Ray’s jeans were damp, and there were a few very small puddles or mist on the floor, he could not testify as to what the liquid was, where it came from, and how long it would have been there, and he did not recall seeing it when he first got to the area of the fall. An employee of Cooper’s Hawk submitted an affidavit stating she was working on the day of the fall, did not know how Ray fell, neither she nor Cooper’s Hawk were notified of the presence and had no knowledge of any type of hazard or liquid substance, employees would inspect the restrooms and hallways every twenty to thirty minutes, and when she inspected the area of the fall, she found no sign of a hazard, water, or other liquid on the floor.
The Court of Appeals found the designated evidence showed that Ray did not know what caused her to fall, to the extent there was some wetness in the area of her fall, it was raining and the observations of the wetness were made only after EMS arrived, Ray did not observe wetness on the floor on her way to the restroom, and Cooper’s Hawk was not notified of the presence and had no knowledge of any type of hazard or liquid on the floor prior to Ray’s fall. The Court concluded the trial erred in denying Cooper’s Hawk’s motion for summary judgment and reversed.
Judge Kirsch dissented with a separate opinion, finding a genuine issue of material fact as to whether Cooper’s Hawk maintained its premises outside the restroom with reasonable care to prevent customers from slipping, falling, and injuring themselves. He noted that it was raining outside, Ray fell as she exited the restroom shortly after arriving at Cooper’s Hawk, one of the EMS personnel said the floor outside the restroom was wet, one of the EMS personnel who knelt on the floor had a damp right knee, Ray’s blue jeans were damp, and Ray’s husband observed the hallway was damp. He found Cooper’s Hawk’s employee’s statements contradictory. He agreed with the trial court and thought the case should be remanded for a trial on the merits of the dispute.
You can read the full opinion here.
UPDATE: On February 9, 2021, after our previous blog post above, the Indiana Supreme Court granted transfer in the case, Cooper’s Hawk Indianapolis, LLC v. Ray, and on procedural grounds, dismissed the appeal (which Cooper’s Hawk had won before the Court of Appeals) and remanded the case to the trial court for further proceedings. In appealing the trial court’s denial of its motion for summary judgment, Cooper’s Hawk failed to timely file a Notice of Appeal in accordance with Indiana Appellate Rule (14)(B)(3), which requires an appellant (in this case, Cooper’s Hawk) to file a Notice of Appeal within fifteen (15) days of the Court of Appeals’ order accepting jurisdiction over an interlocutory appeal. Indiana Appellate Rule 9(A)(5) provides that a right of appeal is forfeited if a Notice of Appeal is not timely filed. When Ray moved to dismiss the appeal on timeliness grounds, Cooper’s Hawk admitted its Notice of Appeal was not timely filed but argued the appeal involved a substantial question of law, the early determination of which would support a more orderly disposition of the case. The Indiana Court of Appeals heard the appeal, with a divided Court of Appeals motions panel denying Ray’s motion to dismiss without explanation. The Court of Appeals found in favor of Cooper’s Hawk and reversed the trial court’s denial of Cooper’s Hawk’s motion for summary judgment, over a dissenting opinion. The Indiana Supreme Court, however, found no extraordinarily compelling reasons to restore the forfeited appeal and dismissed the appeal on a grant of transfer and remanded the case back to the trial court for further proceedings. You can read the Indiana Supreme Court per curiam opinion here.