FILED Sep 19 2023, 8:33 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE David W. Stone IV Jeremy J. McDonald Stone Law Office & Legal Research Nathan D. Ridgway Anderson, Indiana Clint A. Zalas Lee & Zalas, P.C. Franklin D. Julian South Bend, Indiana William A. Keller Anthony R. Steven Sweeney Julian South Bend, Indiana
IN THE COURT OF APPEALS OF INDIANA
Charles Force, September 19, 2023 Appellant-Plaintiff, Court of Appeals Case No. 22A-CT-2759 v. Appeal from the New China Hy Buffet LLC, St. Joseph Superior Court Appellee-Defendant. The Honorable Jenny Pitts Manier, Judge
Trial Court Cause No. 71D05-2003-CT-79
Opinion by Senior Judge Baker Judges Crone and Foley concur.
Court of Appeals of Indiana | Opinion 22A-CT-2759 | September 19, 2023 Page 1 of 8 Baker, Senior Judge.
Statement of the Case [1] After enjoying a meal with his wife and his brother-in-law at a buffet restaurant,
Charles Force fell and became injured. He sued the restaurant’s owner, New
China Hy Buffet, LLC (“New China”), alleging his fall was caused by New
China’s negligent failure to clean the floor. The trial court granted summary
judgment in favor of New China. Concluding Force’s designated evidence
establishes a genuine dispute of material fact on the question of causation, we
reverse and remand.
Issue [2] Force raises one issue, which we restate as: whether the trial court erred in
granting New China’s motion for summary judgment.
Facts and Procedural History [3] On January 25, 2020, Force, his wife Stephanie Force (“Stephanie”), and
Stephanie’s brother, Jerimiah Steele, arrived at the New China Buffet for
dinner. Force noticed the restaurant was humid, because the windows were
fogged and the air felt steamy. Stephanie also saw moisture on the windows.
The restaurant had carpeted floors except around the buffet tables, where there
were tiles. Stephanie felt condensation on the floor as the group walked to their
table.
Court of Appeals of Indiana | Opinion 22A-CT-2759 | September 19, 2023 Page 2 of 8 [4] During their meal, Force and his companions went to the buffet tables. Steele
slipped on the tiled portion of the floor, but he did not fall. He noticed a
“shiny” patch on the tile floor that appeared to be “water and grease.”
Appellant’s App. Vol. II, p. 83.
[5] Later, Force and his companions finished their meal and left their table. Force
fell as he stepped from the carpet onto the tiles, striking his right knee on the
ground. Other restaurant guests helped him stand up, and he moved to a chair
near the exit. Stephanie looked at the spot where Force had fallen and noted “a
thin layer of grease, oil, or some other slick substance . . . .” Id. at 79. After
Force rested for a few minutes, Stephanie and Steele helped him walk to their
vehicle, and they went to the hospital.
[6] While they were at the hospital, Stephanie noticed a greasy black mark on
Force’s pants. Force described the mark as “food grease soil,” id. at 35, and
“oily gunk,” id. at 36. The mark was at the spot where Force’s knee had
touched the floor and had not been present before his fall at New China’s
restaurant. Stephanie stated Force’s jeans did not have any marks prior to his
fall at New China. Later that day, when Stephanie prepared to launder Force’s
pants, she smelled the mark and noticed an odor of grease.
[7] Force sued New China, alleging its employees negligently failed to keep the
floor clean, resulting in his injury. New China moved for summary judgment.
The trial court held a hearing and later granted New China’s motion. This
appeal followed.
Court of Appeals of Indiana | Opinion 22A-CT-2759 | September 19, 2023 Page 3 of 8 Discussion and Decision [8] Force asks the Court to reverse the trial court’s grant of summary judgment,
arguing he designated evidence that was “more than sufficient to create an issue
of fact as to what caused the fall.” Appellant’s Br. p. 6. We review a trial
court’s summary judgment decision de novo, using the same standard as the
trial court. Griffin v. Menard, Inc., 175 N.E.3d 811, 812-13 (Ind. 2021).
Summary judgment is appropriate “if the designated evidentiary matter shows
that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C).
[9] “The moving party bears the burden of making a prima facie showing that there
are no genuine issues of material fact and that the movant is entitled to
judgment as a matter of law . . . .” Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904
N.E.2d 1267, 1270 (Ind. 2009). If the movant satisfies that burden, “the burden
then shifts to the non-moving party to designate and produce evidence of facts
showing the existence of a genuine issue of material fact.” Id. “A fact is
‘material’ if its resolution would affect the outcome of the case, and an issue is
‘genuine’ if a trier of fact is required to resolve the parties’ differing accounts of
the truth . . . .” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009). “We must
construe all factual inferences in favor of the non-moving party, and all doubts
as to the existence of a material issue must be resolved against the moving
party.” Hale v. SS Liquors, Inc., 956 N.E.2d 1189, 1191 (Ind. Ct. App. 2011).
Court of Appeals of Indiana | Opinion 22A-CT-2759 | September 19, 2023 Page 4 of 8 [10] The Indiana Supreme Court has explained, “Indiana consciously errs on the
side of letting marginal cases proceed to trial on the merits, rather than risk
short-circuiting meritorious claims.” Hughley v. State, 15 N.E.3d 1000, 1004
(Ind. 2014). As a result, while the non-moving party has the burden on appeal
of showing the Court that the grant of summary judgment was erroneous, we
carefully assess the trial court’s decision to ensure the non-movant was not
improperly denied a trial. Brown by Brown v. Southside Animal Shelter, Inc., 158
N.E.3d 401, 405 (Ind. Ct. App. 2020), adhered to on reh’g, 162 N.E.3d 1121
(2021), trans. denied.
[11] Force claims New China was negligent. “The elements of negligence are duty,
breach of duty, and damages proximately caused by the breach.” Hellums v.
Raber, 853 N.E.2d 143, 145-46 (Ind. Ct. App. 2006). “It is a well-settled
principle that [a] tort can be proven by circumstantial evidence alone.” Thomas
v. State, 698 N.E.2d 320, 324 (Ind. Ct. App. 1998), trans. denied.
[12] The parties’ dispute focuses on the element of causation. “A negligent act or
omission is the proximate cause of an injury if the injury is a natural and
probable consequence which, in light of the circumstances, should reasonably
have been foreseen or anticipated.” Gates v. Riley ex rel. Riley, 723 N.E.2d 946,
950 (Ind. Ct. App. 2000), trans. denied. Put differently, “[p]roximate cause
requires that there be a reasonable connection between the defendant’s allegedly
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FILED Sep 19 2023, 8:33 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE David W. Stone IV Jeremy J. McDonald Stone Law Office & Legal Research Nathan D. Ridgway Anderson, Indiana Clint A. Zalas Lee & Zalas, P.C. Franklin D. Julian South Bend, Indiana William A. Keller Anthony R. Steven Sweeney Julian South Bend, Indiana
IN THE COURT OF APPEALS OF INDIANA
Charles Force, September 19, 2023 Appellant-Plaintiff, Court of Appeals Case No. 22A-CT-2759 v. Appeal from the New China Hy Buffet LLC, St. Joseph Superior Court Appellee-Defendant. The Honorable Jenny Pitts Manier, Judge
Trial Court Cause No. 71D05-2003-CT-79
Opinion by Senior Judge Baker Judges Crone and Foley concur.
Court of Appeals of Indiana | Opinion 22A-CT-2759 | September 19, 2023 Page 1 of 8 Baker, Senior Judge.
Statement of the Case [1] After enjoying a meal with his wife and his brother-in-law at a buffet restaurant,
Charles Force fell and became injured. He sued the restaurant’s owner, New
China Hy Buffet, LLC (“New China”), alleging his fall was caused by New
China’s negligent failure to clean the floor. The trial court granted summary
judgment in favor of New China. Concluding Force’s designated evidence
establishes a genuine dispute of material fact on the question of causation, we
reverse and remand.
Issue [2] Force raises one issue, which we restate as: whether the trial court erred in
granting New China’s motion for summary judgment.
Facts and Procedural History [3] On January 25, 2020, Force, his wife Stephanie Force (“Stephanie”), and
Stephanie’s brother, Jerimiah Steele, arrived at the New China Buffet for
dinner. Force noticed the restaurant was humid, because the windows were
fogged and the air felt steamy. Stephanie also saw moisture on the windows.
The restaurant had carpeted floors except around the buffet tables, where there
were tiles. Stephanie felt condensation on the floor as the group walked to their
table.
Court of Appeals of Indiana | Opinion 22A-CT-2759 | September 19, 2023 Page 2 of 8 [4] During their meal, Force and his companions went to the buffet tables. Steele
slipped on the tiled portion of the floor, but he did not fall. He noticed a
“shiny” patch on the tile floor that appeared to be “water and grease.”
Appellant’s App. Vol. II, p. 83.
[5] Later, Force and his companions finished their meal and left their table. Force
fell as he stepped from the carpet onto the tiles, striking his right knee on the
ground. Other restaurant guests helped him stand up, and he moved to a chair
near the exit. Stephanie looked at the spot where Force had fallen and noted “a
thin layer of grease, oil, or some other slick substance . . . .” Id. at 79. After
Force rested for a few minutes, Stephanie and Steele helped him walk to their
vehicle, and they went to the hospital.
[6] While they were at the hospital, Stephanie noticed a greasy black mark on
Force’s pants. Force described the mark as “food grease soil,” id. at 35, and
“oily gunk,” id. at 36. The mark was at the spot where Force’s knee had
touched the floor and had not been present before his fall at New China’s
restaurant. Stephanie stated Force’s jeans did not have any marks prior to his
fall at New China. Later that day, when Stephanie prepared to launder Force’s
pants, she smelled the mark and noticed an odor of grease.
[7] Force sued New China, alleging its employees negligently failed to keep the
floor clean, resulting in his injury. New China moved for summary judgment.
The trial court held a hearing and later granted New China’s motion. This
appeal followed.
Court of Appeals of Indiana | Opinion 22A-CT-2759 | September 19, 2023 Page 3 of 8 Discussion and Decision [8] Force asks the Court to reverse the trial court’s grant of summary judgment,
arguing he designated evidence that was “more than sufficient to create an issue
of fact as to what caused the fall.” Appellant’s Br. p. 6. We review a trial
court’s summary judgment decision de novo, using the same standard as the
trial court. Griffin v. Menard, Inc., 175 N.E.3d 811, 812-13 (Ind. 2021).
Summary judgment is appropriate “if the designated evidentiary matter shows
that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C).
[9] “The moving party bears the burden of making a prima facie showing that there
are no genuine issues of material fact and that the movant is entitled to
judgment as a matter of law . . . .” Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904
N.E.2d 1267, 1270 (Ind. 2009). If the movant satisfies that burden, “the burden
then shifts to the non-moving party to designate and produce evidence of facts
showing the existence of a genuine issue of material fact.” Id. “A fact is
‘material’ if its resolution would affect the outcome of the case, and an issue is
‘genuine’ if a trier of fact is required to resolve the parties’ differing accounts of
the truth . . . .” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009). “We must
construe all factual inferences in favor of the non-moving party, and all doubts
as to the existence of a material issue must be resolved against the moving
party.” Hale v. SS Liquors, Inc., 956 N.E.2d 1189, 1191 (Ind. Ct. App. 2011).
Court of Appeals of Indiana | Opinion 22A-CT-2759 | September 19, 2023 Page 4 of 8 [10] The Indiana Supreme Court has explained, “Indiana consciously errs on the
side of letting marginal cases proceed to trial on the merits, rather than risk
short-circuiting meritorious claims.” Hughley v. State, 15 N.E.3d 1000, 1004
(Ind. 2014). As a result, while the non-moving party has the burden on appeal
of showing the Court that the grant of summary judgment was erroneous, we
carefully assess the trial court’s decision to ensure the non-movant was not
improperly denied a trial. Brown by Brown v. Southside Animal Shelter, Inc., 158
N.E.3d 401, 405 (Ind. Ct. App. 2020), adhered to on reh’g, 162 N.E.3d 1121
(2021), trans. denied.
[11] Force claims New China was negligent. “The elements of negligence are duty,
breach of duty, and damages proximately caused by the breach.” Hellums v.
Raber, 853 N.E.2d 143, 145-46 (Ind. Ct. App. 2006). “It is a well-settled
principle that [a] tort can be proven by circumstantial evidence alone.” Thomas
v. State, 698 N.E.2d 320, 324 (Ind. Ct. App. 1998), trans. denied.
[12] The parties’ dispute focuses on the element of causation. “A negligent act or
omission is the proximate cause of an injury if the injury is a natural and
probable consequence which, in light of the circumstances, should reasonably
have been foreseen or anticipated.” Gates v. Riley ex rel. Riley, 723 N.E.2d 946,
950 (Ind. Ct. App. 2000), trans. denied. Put differently, “[p]roximate cause
requires that there be a reasonable connection between the defendant’s allegedly
negligent conduct and the plaintiff’s damages.” Id.
Court of Appeals of Indiana | Opinion 22A-CT-2759 | September 19, 2023 Page 5 of 8 [13] “Generally, it is the jury’s function to determine whether a defendant’s conduct
was a substantial factor in bringing about injury; when there might be a
reasonable difference of opinion as to the foreseeability of a particular risk or
the reasonableness with regard to it, the question is also one for the jury.”
Harper v. Guarantee Auto Stores, 533 N.E.2d 1258, 1264 (Ind. Ct. App. 1989),
trans. denied. “Only in plain and indisputable cases, where only a single
inference or conclusion can be drawn, are the questions of proximate cause and
intervening cause matters of law to be determined by the court.” Peters v.
Forster, 804 N.E.2d 736, 743 (Ind. 2004).
[14] In Golba v. Kohl’s Dep’t Store, Inc., 585 N.E.2d 14, 17 (Ind. Ct. App. 1992), trans.
denied, a person who fell in a department store opposed the store’s motion for
summary judgment but did not prevail in the trial court, despite designating
evidence showing she slipped on a small piece of debris in the store several
hours after employees had swept the floors. The Court reversed the trial court’s
grant of summary judgment, determining the person’s evidence established a
dispute of fact that required a jury to decide the question of causation. Id.; see
also St. Mary’s Med. Ctr. of Evansville, Inc. v. Loomis, 783 N.E.2d 274, 281 (Ind.
Ct. App. 2002) (affirming denial of hospital’s motion for judgment on evidence
in slip and fall case; victim provided evidence he had slipped on water in break
room, and the back of his clothes were wet); Barsz v. Max Shapiro, Inc., 600
N.E.2d 151, 153 (Ind. Ct. App. 1992) (reversing grant of summary judgment to
restaurant owner in slip and fall case; victim designated evidence showing her
Court of Appeals of Indiana | Opinion 22A-CT-2759 | September 19, 2023 Page 6 of 8 fall was caused by stepping in something slippery, and a water glass was found
on floor near where victim fell).
[15] The circumstances of Force’s case resemble those in Golba, Loomis, and Barsz.
When Force, Stephanie, and Steele entered the restaurant, Force and Stephanie
saw moisture on the windows. Force further noticed the air was steamy. In
addition, Stephanie felt moisture on the floor as she walked to their table, and
Steele slipped as he obtained food from a buffet. Steele observed a patch of
water or grease on the floor. After Force fell, Stephanie saw a thin layer of
liquid on the floor. Also, Force and Stephanie noticed a black mark on the
knee of Force’s jeans, at the spot where his knee touched the floor. The spot
appeared oily to Force, and Stephanie smelled grease on the spot. Stephanie
stated the mark had not been on Force’s jeans prior to his fall. This evidence
establishes a genuine dispute of material fact as to whether Force’s fall was
caused by New China’s negligent failure to keep the floor clean.
[16] New China argues negligence cannot be inferred merely because an accident
occurred. We do not quarrel with that principle, but the facts here establish
more than an accident. Instead, Force presented material facts to support his
claim that New China’s negligence caused his injury. Next, New China points
to alleged inconsistencies in Stephanie and Steele’s deposition testimony, but
any inconsistencies would pertain to their credibility. And “[s]ummary
judgment must be denied if the resolution hinges upon state of mind, credibility
of the witnesses, or the weight of the testimony.” Nelson v. Jimison, 634 N.E.2d
Court of Appeals of Indiana | Opinion 22A-CT-2759 | September 19, 2023 Page 7 of 8 509, 512 (Ind. Ct. App. 1994). The trial court erred in granting New China’s
motion for summary judgment.
Conclusion [17] For the reasons stated above, we reverse the judgment of the trial court and
remand for further proceedings.
[18] Reversed and remanded.
Crone, J., and Foley, J., concur.
Court of Appeals of Indiana | Opinion 22A-CT-2759 | September 19, 2023 Page 8 of 8