in the court of appeals of indiana - in.gov · 2 statement of the case donald h. westfall appeals...
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Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the purpose
of establishing the defense of res
judicata, collateral estoppel, or the law
of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ERIC A. FREY THOMAS L. DAVIS
Frey Law Firm JULIE BLACKWELL GELINAS
Terre Haute, Indiana MAGGIE L. SMITH
Frost Brown Todd LLC
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DONALD H. WESTFALL, )
)
Appellant, )
)
vs. ) No. 77A01-1012-CT-665
)
WAL-MART STORES EAST, LP, )
)
Appellee. )
APPEAL FROM THE SULLIVAN SUPERIOR COURT
The Honorable Robert E. Springer, Judge
Cause No. 77D01-0710-CT-323
August 12, 2011
MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN, Judge
2
STATEMENT OF THE CASE
Donald H. Westfall appeals the trial court’s order granting summary judgment to
Wal-Mart Stores East, LP (“Wal-Mart”).
We reverse and remand for further proceedings.
ISSUE
Whether the trial court erred by granting summary judgment to Wal-Mart.
FACTS
The facts most favorable to Westfall, the non-movant in this summary judgment
proceeding, are as follows. On March 5, 2007, around 5:00 p.m., Westfall, who had not
been feeling well, went to the hospital emergency room for an EKG. Around 9:00 p.m.,
Westfall left the emergency room with a prescription to treat a heart arrhythmia. When
Westfall arrived at the hospital, it was not raining or snowing, but when he left the
hospital, the weather was “blustery[,]” and it was “either raining and hailing a little or
raining and snowing.” (Westfall’s App. 58). Westfall’s son, Jonathan Aguilar, drove
Westfall from the hospital to Wal-Mart to pick up his prescription.
Upon arriving at Wal-Mart, Aguilar parked in a parking spot nearest to the door,
went into Wal-Mart to retrieve an electronic cart for Westfall, and drove it out to the car.
Westfall walked with a cane, but he used a Wal-Mart’s electronic shopping cart whenever
he shopped at Wal-Mart, which was “probably daily.” (Westfall’s App. 60). Westfall
also wore a belt around his chest and abdomen so people could assist him when getting
up or making movements. Aguilar used this assist belt to help Westfall, who was sitting
in the passenger seat, transfer from the car to the cart.
3
Westfall and Aguilar saw that the parking lot had previously been plowed and that
there were piles of snow near the poles in the parking lot. The snow piles contained some
loose pieces of asphalt or gravel that had apparently been scooped up into the snow when
the parking lot had been plowed. Near where Aguilar had parked his car, some of the
snow from such a snow pile had melted, causing some loose asphalt debris to flow down
from the pile and onto the parking lot and leaving a sort of “glacial trail” where “[t]he
water had drained away but the material was still there.” (Westfall’s App. 61). The
asphalt debris “was tapered like the mouth or the delta of a river . . . . It was . . . narrower
up near the snow, but fan [sic] out towards the bottom part.” (Westfall’s App. 64).
Westfall saw this patch of loose asphalt debris, which measured approximately twelve to
eighteen inches wide, as he got out of the car and onto his cart. Despite the debris,
Westfall was able to transfer from the car to the cart, and he later indicated in a
deposition that when exiting the car the loose asphalt “wasn’t a problem.” (Westfall’s
App. 61). Aguilar also saw the asphalt debris prior to entering the store and also testified
in his deposition that it was not a problem for Westfall when exiting the car and getting
onto the cart.
Westfall shopped in Wal-Mart for approximately twenty minutes and then drove
the electric cart out to the parking lot next to the passenger side of Aguilar’s car. When
he came out of the store, precipitation was still falling.1 Aguilar opened the car door and
used Westfall’s assist belt to help him transfer from the cart to the car. Westfall held onto
1 In his deposition, Westfall responded in the affirmative when asked if it was “still raining or snowing”
upon leaving the Wal-Mart store, but he did not specify which type of precipitation was falling.
(Westfall’s App. 62).
4
the top of the passenger door and put his left foot into the car. As he put his right foot on
the ground, he slipped on the loose asphalt debris. Westfall did not fall to the ground or
hit any part of his body on the ground. Aguilar held Westfall up with his assist belt and
helped him regain his footing and get into the car. Aguilar returned the electric cart to the
Wal-Mart store.2 Aguilar did not report to any Wal-Mart employee that Westfall had
slipped in the parking lot. Aguilar then took Westfall home.
The following day, March 6, 2007, Westfall realized he was hurt when he
attempted to get out of bed. He had “extreme pain” in his abdomen extending down his
chest and into his crotch. (Westfall’s App. 87). Westfall was hospitalized from that day
until July 2007. He had internal bleeding from a tear in his intestines and had two
surgeries.
On October 11, 2007, Westfall filed a complaint against Wal-Mart, alleging that
Wal-Mart was negligent for “failing to keep their parking lot cleared from snow/ice.”
(Westfall’s App. 54). In November 2007, upon motion by Wal-Mart, the case was
moved to United States District Court and then later remanded back to the trial court in
June 2008. Westfall then filed an amended complaint, adding Custom Sweeping Services
(“Custom Sweeping”) and Triple A Lawn & Landscape (“Triple A”)—who provided
sweeping and plowing services to Wal-Mart—as defendants.
2 When Westfall shopped by himself, he would have one of the cart boys return the electric cart to the
store for him.
5
Wal-Mart, Custom Sweeping, and Triple A all filed individual motions for
summary judgment.3 Wal-Mart’s designated evidence consisted only of Westfall’s
complaint and portions of Westfall’s and Aguilar’s depositions. Wal-Mart—relying on
Westfall’s and Aguilar’s deposition testimony that they were aware of the loose asphalt
in the parking lot and that they acknowledged it was not a problem upon exiting the car—
argued that it was entitled to summary judgment because it had not breached its duty to
Westfall as an invitee. Specifically, Wal-Mart argued that there was no evidence that
Wal-Mart had actual or constructive knowledge of the condition of the loose asphalt in
the parking lot; the loose asphalt was not an unreasonably dangerous condition; and even
if it was, Westfall failed to take reasonable care to protect himself against it despite his
knowledge of the condition.
Westfall sought three extensions of time to file his response to Wal-Mart’s
summary judgment motion, and the trial court granted each request.4 Westfall filed a
combined response to the three summary judgment motions on November 15, 2010. In
response to Wal-Mart’s summary judgment motion, Westfall admitted that he had seen
the loose asphalt in the parking lot but argued that the question of whether Wal-Mart had
exercised the requisite degree of care was a question of fact for the jury.
On December 3, 2010, the trial court held a hearing on the summary judgment
motions. At the beginning of the hearing—and after stipulation by Westfall—the trial
3 Wal-Mart filed its summary judgment motion on July 16, 2010, Custom Sweeping filed its motion on
September 22, 2010, and Triple A filed its motion on October 27, 2010.
4 These extensions of time will be discussed in further detail later in the opinion.
6
court granted Custom Sweeping’s and Triple A’s summary judgment motions. The trial
court took Wal-Mart’s motion under advisement and thereafter issued an order granting
Wal-Mart’s motion for summary judgment and generally concluding that “there [was] no
material dispute of fact” and that Wal-Mart was “entitled to judgment as a matter of law.”
(Westfall’s App. 38).
DECISION
Before we proceed to the issue of whether summary judgment was appropriately
granted, we address Wal-Mart’s assertion that Westfall’s response and designated
evidence were untimely filed and cannot be considered by this court. Wal-Mart contends
that because Westfall’s third extension of time was filed more than thirty days after the
date contained in the trial court’s second order granting an extension of time, the trial
court was without discretion to grant the third extension and this court should not
consider Westfall’s designated evidence.
Indiana Trial Rule 56(C) provides that a party opposing a motion for summary
judgment has thirty days after service of the motion to serve a response and any opposing
affidavits. Indiana Trial Rule 56(I) provides: “For cause found, the Court may alter any
time limit set forth in this rule upon motion made within the applicable time limit.” Ind.
T.R. 56(I) (emphasis added). Our Indiana Supreme Court has explained that there is a
“bright line rule” that prohibits a trial court from considering summary judgment filings
after the thirty-day period:
[W]here a nonmoving party fails to respond within thirty days by either (1)
filing affidavits showing issues of material fact, (2) filing his own affidavit
under Rule 56(F) indicating why the facts necessary to justify his
7
opposition are unavailable, or (3) requesting an extension of time in which
to file his response under 56(I), the trial court lacks discretion to permit that
party to thereafter file a response. In other words, a trial court may
exercise discretion and alter time limits under 56(I) only if the nonmoving
party has responded or sought an extension within thirty days from the date
the moving party filed for summary judgment.
HomEq Servicing Corp. v. Baker, 883 N.E.2d 95, 98 (Ind. 2008) (quoting Desai v. Croy,
805 N.E.2d 844, 849 (Ind. Ct. App. 2004), trans. denied) (emphasis added).
Here, Westfall filed three extensions of time to respond to Wal-Mart’s summary
judgment motion. The trial court’s order granting Westfall’s second extension provided
that Westfall had “to and including October 16, 2010 in which to file his response to
defendant, Wal-Mart’s Motion for Summary Judgment.” (Wal-Mart’s App. 6).
Thereafter, on October 1, 2010, the trial court issued an order indicating that a summary
judgment hearing on the three defendants’ summary judgment motions and a status
conference requested by Wal-Mart would both be held on November 15, 2010. On
October 22, 2010—six days after the due date of Westfall’s response to Wal-Mart’s
summary judgment motion—Westfall filed a third extension of time to respond to Wal-
Mart’s summary judgment motion. In his extension motion, Westfall erroneously
indicated that the trial court had already granted him an extension of time until November
15, 2010 to respond to Wal-Mart’s summary judgment motion, and he asked that he be
allowed to file a combined summary judgment response to Wal-Mart’s and Custom
Sweeping’s summary judgment motions. The trial court granted Westfall’s extension,
and Westfall filed a combined response to the summary judgment motions on November
15, 2010. Westfall’s designated evidence apparently consisted of evidence that was
8
already designated by the three defendants, such as portions of his and Aguilar’s
depositions and Triple A’s affidavit regarding its contract for snow plowing with Wal-
Mart.5
Wal-Mart, however, did not file a motion to strike or object to any portion of
Westfall’s designated evidence during the summary judgment hearing.6 Instead, Wal-
Mart raises this issue for the first time in its Appellee Brief and simply asserts Westfall’s
designated evidence should not have been considered by the trial court or this court. “A
5 Triple A’s affidavit provided, in relevant part:
5. Triple A contracts with the Terre Haute Wal-Mart retail center (“Wal-Mart”) to
perform landscaping and snow removal services there.
6. The snow removal contract provides that Triple A must clear Wal-Mart’s parking lot
once at least one (1) inch of snow has fallen.
7. Triple A will remove snow and ice in Wal-Mart’s parking lot when as little as one
quarter (¼) inch has fallen if Wal-Mart’s manager calls and requests Triple A to do so.
8. Additionally, if inclement weather is predicted, Wal-Mart will call Triple A to spread
calcium chloride on the lot before snow or ice begins falling.
* * * * *
11. On February 17, 2007, Triple A cleared snow from Wal-Mart’s parking lot and
sidewalk.
12. In between February 17, 2007 and March 5, 2007, Triple A did not perform any
snow removal work at Wal-Mart.
13. In between February 17, 2007 and March 5, 2007, no one from Wal-Mart called
Triple A to request snow plowing.
14. Additionally on March 5, 2007 there was not a sufficient snow fall to require Triple
A to make an unrequested trip to plow the Wal-Mart parking lot in Terre Haute, Indiana,
pursuant to the terms of its contract with Wal-Mart.
(Westfall’s App. 89-90).
6 Wal-Mart makes no argument that it objected at the trial court level, and it fails to direct our attention to
a citation in the record indicating that it filed a motion to strike or objected to the designated evidence
during the summary judgment hearing.
9
complaining party has a duty to direct the trial court’s attention to a defective affidavit,
and failure to raise an objection constitutes waiver.” Paramo v. Edwards, 563 N.E.2d
595, 600 (Ind. 1990). Because Wal-Mart failed to file a motion to strike or object to the
designated evidence at the trial court level, it has waived any such argument on appeal.7
Turning to the main issue on appeal, Westfall argues that the trial court erred by
granting Wal-Mart’s motion for summary in his negligence action against Wal-Mart.
The standard of review of a summary judgment is the same as that used in the trial court.
Kopczynski v. Barger, 887 N.E.2d 928, 930 (Ind. 2008). Summary judgment is
appropriate only where there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Id. “[T]he party seeking summary judgment has
the initial burden of proving the absence of a genuine issue of material fact as to an
outcome-determinative issue. Only then must the non-movant come forward with
contrary evidence demonstrating the existence of genuine factual issues that should be
resolved at trial.” Kroger Co. v. Plonski, 930 N.E.2d 1, 9 (Ind. 2010) (citing Jarboe v.
7 The only reference in the record mentioning Westfall’s designated evidence is during the summary
judgment hearing when counsel for Wal-Mart told the trial court it was not necessary to address the
timing of Westfall’s summary judgment response:
I don’t think we need to address timing [sic] of plaintiff’s response. I don’t think we
need to address the substance of the response in terms of whether it can be considered
because what the plaintiff has done is designated basically, with a few exceptions, the
pages designated by each of the three defendants, who filed their own motions for
summary judgment. And so what we have here is a case on the undisputed facts
presented by plaintiff . . . .
(Tr. 9). “A party may not take advantage of an error that he commits, invites, or which is the natural
consequence of his own neglect or misconduct.” Countrymark Coop., Inc. v. Hammes, 892 N.E.2d 683,
695 (Ind. Ct. App. 2008), trans. denied. “Invited error is not subject to review by this court.” Id. Thus,
to the extent that Wal-Mart may have lodged some sort of objection about the timing of Westfall’s
designated evidence, it cannot now suggest that the trial court erred in considering the designated
evidence when it created the situation and invited any such error.
10
Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994), reh’g
denied).
In determining whether summary judgment is appropriate, we construe all facts
and reasonable inferences in favor of the nonmoving party. Id. Our review is limited to
those materials designated to the trial court. Mangold ex rel. Mangold v. Ind. Dep’t of
Natural Res., 756 N.E.2d 970, 973 (Ind. 2001). We must carefully review a decision on
summary judgment to ensure a party is not improperly denied its day in court. Id. at 974.
Westfall brought suit against Wal-Mart under a theory of premise liability, which
is rooted in negligence. To prevail on a negligence claim, a plaintiff must establish three
elements: (1) duty owed to the plaintiff by defendant; (2) breach of duty by allowing
conduct to fall below the applicable standard of care; and (3) compensable injury
proximately caused by defendant’s breach of duty. Kroger, 930 N.E.2d at 6. Summary
judgment is “rarely appropriate” in negligence cases. Rhodes v. Wright, 805 N.E.2d 382,
387 (Ind. 2004) (citations omitted). “This is because negligence cases are particularly fact
sensitive and are governed by a standard of the objective reasonable person—one best
applied by a jury after hearing all of the evidence.” Id. A defendant is entitled to
judgment as a matter of law only when the undisputed material facts negate at least one
element of the plaintiff’s claim. Id. at 385.
Wal-Mart does not dispute that Westfall was an invitee while in the Wal-Mart
parking lot. Accordingly, Wal-Mart owed Westfall a duty to exercise reasonable care for
Westfall’s protection while he was on Wal-Mart’s premises. Burrell v. Meads, 569
N.E.2d 637, 639 (Ind. 1991), reh’g denied; Harradon v. Schlamadinger, 913 N.E.2d 297,
11
300 (Ind. Ct. App. 2009), trans. denied. The issue disputed by the parties is whether
Wal-Mart breached its duty to Westfall as a matter of law.8 A determination of whether
there has been a breach of duty in a negligence action generally is a question of fact for a
jury and, therefore, inappropriate for resolution by summary judgment. Northern Indiana
Pub. Serv. Co. v. Sharp, 790 N.E.2d 462, 466 (Ind. 2003). The court may, however,
determine as a matter of law whether a breach of duty has occurred when the facts are
undisputed and lead only to a single inference or conclusion. Id.
Our Indiana Supreme Court has adopted Restatement (Second) of Torts Section
343, which defines the scope of the duty a landowner owes to an invitee on its property
and provides:
A possessor of land is subject to liability for physical harm caused to his
invitees by a condition on the land, but only if, he
(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, and
(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.
Burrell, 569 N.E.2d at 639-40 (quoting Restatement (Second) of Torts § 343 (1965)). All
three conditions set forth in Section 343 must be met for liability to attach. Harradon,
913 N.E.2d at 300. Therefore, in order for Wal-Mart to obtain summary judgment in its
favor, it was required to designate evidence demonstrating that one of these elements of
8 In the summary judgment proceeding and on appeal, Wal-Mart has not disputed that Westfall fell on the
loose gravel debris and injured himself.
12
premises liability is not satisfied. See Pfenning v. Lineman, 947 N.E.2d 392, 406 (Ind.
2011); Jarboe, 644 N.E.2d at 123.
Additionally, Section 343A of the Restatement (Second) of Torts—which
discusses known or obvious dangers and is meant to be read along with Section 343—
provides, in part, as follows: “A possessor of land is not liable to his invitees for physical
harm caused to them by any . . . condition on the land whose danger is known or obvious
to them, unless the possessor should anticipate the harm despite such knowledge or
obviousness.”9 Smith v. Baxter, 796 N.E.2d 242, 245 (Ind. 2003) (quoting Restatement
(Second) of Torts § 343A); see also Douglass v. Irvin, 549 N.E.2d 368, 370 (Ind. 1990).
“The comparative knowledge of a possessor of land and an invitee regarding known or
obvious dangers may properly be taken into consideration in determining whether the
possessor breached the duty of reasonable care under Sections 343 and 343A of the
Restatement (Second) of Torts.”10
Smith, 796 N.E.2d at 245.
9 As explained in the comments to Section 343A:
The word “known” denotes knowledge of the existence of the condition or activity itself
and also appreciation of the danger it involves. Thus the condition or activity must not
only be known to exist, but it must also be recognized that it is dangerous, and the
probability and gravity of the threatened harm must be appreciated. “Obvious” means
that both the condition and the risk are apparent to and would be recognized by a
reasonable man, in the position of the visitor, exercising ordinary perception, intelligence,
and judgment.
Restatement (Second) of Torts § 343A, cmt. b.
10
We acknowledge that our supreme court recently indicated that a plaintiff’s subjective knowledge of a
risk of harm should not be addressed when analyzing the factors contained in Restatement (Second) of
Torts Section 343 and stated that the plaintiff’s knowledge is only relevant when assessing the defense of
incurred risk. See Pfenning, 947 N.E.2d at 406. That case, however, did not address Restatement Section
343A. Furthermore, in Smith, 796 N.E.2d at 244, our supreme court reaffirmed that the analysis in
Douglass, 549 N.E.2d at 370—that parties’ knowledge of a risk is appropriate for determination of both
13
Wal-Mart—focusing on Westfall’s subjective awareness of the loose gravel
debris and the fact that he was able to traverse it upon exiting the car—argues that
summary judgment was appropriate because its designated evidence reveals that Westfall
would not be able to show that Wal-Mart breached its duty of care to sustain its claim of
premises liability.
Westfall contends that there are disputed issues of fact regarding whether Wal-
Mart breached its duty to maintain a safe parking lot and argues that his deposition
testimony—that he saw the loose gravel when exiting the car “but it wasn’t a problem”—
when construed most favorably to him as a non-movant does not establish a basis for
granting summary judgment. (Westfall’s App. 61). We are compelled to agree with
Westfall because Wal-Mart has not met its initial burden of demonstrating the absence of
a genuine issue of material fact in regard to the breach of duty issue.
In Jarboe, our Indiana Supreme Court explained the importance of the parties’
burden in a summary judgment proceeding:
The burden imposed at trial upon the party with the burden of proof on an
issue is significantly different from that required of a non-movant in an
Indiana summary judgment proceeding. Under Indiana’s standard, the
party seeking summary judgment must demonstrate the absence of any
genuine issue of fact as to a determinative issue, and only then is the non-
movant required to come forward with contrary evidence.
* * * * *
Merely alleging that the plaintiff has failed to produce evidence on each
element of [his cause of action against the defendant] is insufficient to
entitle the defendant to summary judgment under Indiana law.
breach of duty and defense of incurred risk—was applicable even after the passage of the Comparative
Fault Act.
14
Jarboe, 644 N.E.2d at 123.
More recently, in Kroger Co. v. Plonski, our supreme court reemphasized the
burden requirements set out in Jarboe and the necessity that a moving party meet its
initial burden of proving an absence of a genuine issue of material fact. In that case, the
defendant-store Kroger argued on summary judgment that it had not breached its duty to
a business invitee who had been attacked in the parking lot because the designated
evidence showed that the customer had shopped at the Kroger store approximately 100
times without incident and admitted feeling safe and because there was no evidence that
the store had done anything differently on the day of the attack. Kroger, 930 N.E.2d at 9.
Our supreme court explained that the fact that the customer had felt safe at the Kroger in
the past was “not dispositive” and that the lack of evidence regarding Kroger’s actions on
the day of the attack was “the point of the matter” and that it would be left to the fact
finder to determine whether Kroger should have done more. Id. at 110.
Accordingly, our task on appeal is not to determine whether Westfall has proved
each element of the breach of duty issue; instead, we must determine whether Wal-Mart
has adequately met its initial burden of proving an absence of any genuine issue of
material fact in its designated evidence with respect to the breach of its duty of care. See
Kroger, 930 N.E.2d at 9; Jarboe, 644 N.E.2d at 123.
Here, as the moving party in this summary judgment action, Wal-Mart had the
burden of showing that as a matter of law it did not breach its duty to Westfall when he
was an invitee on its premises. The only summary judgment evidence Wal-Mart
designated to the trial court was Westfall’s complaint and portions of Westfall’s and
15
Aguilar’s depositions. Wal-Mart’s designated evidence did not include any sort of
affidavit from any Wal-Mart employee or any evidence indicating what it did or did not
do to meet its duty of care. In fact, during the summary judgment hearing, Westfall
argued that Wal-Mart had an obligation to make the premises safe and that summary
judgment was inappropriate because there was “no evidence in the record of what [Wal-
Mart] did to make it safe except hire a company to do some snow removal and put it in a
pile” and that there was “nothing in the record to show they did anything.” (Tr. 15). In
response, Wal-Mart agreed that “we don’t know what Wal-Mart did” and that the
“summary judgment [was] not based on what Wal-Mart did because that would put
things into the record about which there might be inferences.” (Tr. 16).
In essence, Wal-Mart attempts to shine the spotlight of the breach of duty analysis
entirely onto Westfall and his actions and knowledge while Wal-Mart attempts to hide in
the shadows and ignore any facts or evidence regarding whether it should have
discovered the condition or expected Westfall would fail to protect himself. Pursuant to
Jarboe, Wal-Mart has not met its initial burden on its motion for summary judgment.
Wal-Mart has not demonstrated the absence of a genuine issue of material fact, but
instead, has merely alleged that Westfall failed to present evidence showing that Wal-
Mart breached its duty. Such an allegation, however, is insufficient to entitle Wal-Mart
to summary judgment on this issue. See, e.g., Kroger, 930 N.E.2d at 9; Jarboe, 644
N.E.2d at 123; Dennis v. Greyhound Lines, Inc., 831 N.E.2d 171, 175 (Ind. Ct. App.
2005) (reversing trial court’s grant of summary judgment to defendants because its
designated evidence did not establish the absence of a genuine issue of material fact
16
relating to breach of duty), trans. denied; Deuitch v. Fleming, 746 N.E.2d 993, 998-99
(Ind. Ct. App. 2001) (reversing trial court’s grant of summary judgment to defendants
who had argued that summary judgment was appropriate on plaintiffs’ premises liability
claim because plaintiffs were not able to establish facts to support that there was a breach
of duty by defendants or that injuries were proximately caused by such a breach), trans.
denied; Cole v. Gohmann, 727 N.E.2d 1111, 1116 (Ind. Ct. App. 2000) (reversing trial
court’s grant of summary judgment to defendant because she failed to designate materials
establishing the absence of a material fact regarding whether she breached a duty of
care). Accordingly, we reverse the trial court’s order granting summary judgment to
Wal-Mart and remand for further proceedings.11
We reverse and remand for further proceedings.
RILEY, J., and BARNES, J., concur.
11
Furthermore, whether a breach of duty occurred is a factual question requiring an evaluation of the
landowner’s conduct with respect to the applicable standard of care. Countrymark, 892 N.E.2d at 688.
The lack of designated evidence regarding Wal-Mart’s conduct and knowledge leaves an issue of fact
regarding whether it breached its duty of care that must be determined by the trier of fact. See e.g., id. at
691 (affirming trial court’s denial of summary judgment where genuine issues of fact regarding breach of
duty as set forth in Restatement Sections 343 and 343A remained).