Opinion
No. 77A01-1012-CT-665
08-12-2011
DONALD H. WESTFALL, Appellant, v. WAL-MART STORES EAST, LP, Appellee.
ATTORNEY FOR APPELLANT : ERIC A. FREY Frey Law Firm Terre Haute, Indiana ATTORNEYS FOR APPELLEE : THOMAS L. DAVIS JULIE BLACKWELL GELINAS MAGGIE L. SMITH Frost Brown Todd LLC Indianapolis, Indiana
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:
ERIC A. FREY
Frey Law Firm
Terre Haute, Indiana
ATTORNEYS FOR APPELLEE:
THOMAS L. DAVIS
JULIE BLACKWELL GELINAS
MAGGIE L. SMITH
Frost Brown Todd LLC
Indianapolis, Indiana
APPEAL FROM THE SULLIVAN SUPERIOR COURT
The Honorable Robert E. Springer, Judge
Cause No. 77D01-0710-CT-323
MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN, Judge
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.
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. Aguilar opened the car door and used Westfall's assist belt to help him transfer from the cart to the car. Westfall held onto 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. Aguilar did not report to any Wal-Mart employee that Westfall had slipped in the parking lot. Aguilar then took Westfall home.
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).
When Westfall shopped by himself, he would have one of the cart boys return the electric cart to the store for him.
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.
Wal-Mart, Custom Sweeping, and Triple A all filed individual motions for summary judgment. 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.
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.
Westfall sought three extensions of time to file his response to Wal-Mart's summary judgment motion, and the trial court granted each request. 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.
These extensions of time will be discussed in further detail later in the opinion.
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 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 hisHomEq 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).
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.
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 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.
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.(Westfall's App. 89-90).
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 (%) 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.
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. 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 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.
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.
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.
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.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, 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. 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.
In the summary judgment proceeding and on appeal, Wal-Mart has not disputed that Westfall fell on the loose gravel debris and injured himself.
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, heBurrell, 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 premises liability is not satisfied. See Pfenning v. Lineman, 947 N.E.2d 392, 406 (Ind. 2011); Jarboe, 644 N.E.2d at 123.
(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.
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."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."Smith, 796 N.E.2d at 245.
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.
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 breach of duty and defense of incurred risk—was applicable even after the passage of the Comparative Fault Act.
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.Jarboe, 644 N.E.2d at 123.
* * * * *
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.
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 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 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.
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).
We reverse and remand for further proceedings. RILEY, J., and BARNES, J., concur.