MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), May 06 2016, 9:11 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE R. Daniel Craven Logan C. Hughes Craven, Hoover & Blazek, PC Reminger Co., LPA Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Erika Jagger DeHeer, May 6, 2016 Appellant-Plaintiff, Court of Appeals Case No. 32A01-1512-CT-2313 v. Appeal from the Hendricks Superior Court Ray’s Trash Service, Inc., The Honorable Stephanie LeMay- Appellee-Defendant Luken, Judge Trial Court Cause No. 32D05-1410-CT-140
Crone, Judge.
Case Summary [1] Erika Jagger DeHeer brought a negligence action against Ray’s Trash Service,
Inc. (“Ray’s”), for injuries she suffered when she fell and cut her face on the
Court of Appeals of Indiana | Memorandum Decision 32A01-1512-CT-2313 | May 6, 2016 Page 1 of 8 inner rim of her rolling trash bin. The trial court granted summary judgment in
favor of Ray’s, and DeHeer appeals. Concluding that Ray’s affirmatively
negated an element of DeHeer’s negligence claim, we affirm.
Facts and Procedural History [2] The undisputed material facts are as follows. In November 2010, DeHeer
moved to a five-acre Noblesville farm. Shortly thereafter, she contacted Ray’s
to commence weekly trash and recycling pickup service. In conjunction with
Ray’s service, customers use Ray’s standard-issue trash and recycle bins, which
are large plastic containers with a hinged lid, handles, and two wheels for easy
transport. Inside the hinged lid is a large printed message, “PLEASE CLOSE
LID BEFORE MOVING.” Plaintiff’s Ex. 6. For the next year and a half,
DeHeer used the bins without incident, always closing the lid before moving
them, a practice which she considered to be “common sense.” Appellant’s
App. at 40.
[3] On the evening of May 13, 2012, DeHeer wheeled her trash and recycle bins to
the end of her dirt and gravel driveway for collection the next morning. On
May 14, she left around 7:15 a.m. to drive her son to his high school in
Indianapolis and noticed that the trash and recycling had not yet been collected.
When she returned about an hour and a half later, she noticed that the bins
were empty and lying on their sides in her driveway, lids open. She exited her
vehicle and bent down to grab the trash bin by its handles, which were
perpendicular to the ground. She did not close the lid. As she attempted to
Court of Appeals of Indiana | Memorandum Decision 32A01-1512-CT-2313 | May 6, 2016 Page 2 of 8 turn the bin upright, it rolled away from her and she fell forward, hitting her
nose and cheek on the plastic inner rim. She sought immediate treatment at the
plastic surgery center where she had undergone a previous cosmetic procedure.
Her injuries included a nasal bone fracture, nasal tissue avulsion laceration,
wounds to her right cheek and eyelid, and pain in her head and shoulder. She
did not notify Ray’s of the incident and continued to use Ray’s for her trash and
recycling service for five months thereafter.
[4] In May 2014, DeHeer filed a negligence action against Ray’s. Ray’s
subsequently filed a motion for summary judgment, claiming that it did not
breach a duty to DeHeer and, in the alternative, that DeHeer incurred any risk
associated with her use of the bins. DeHeer filed a motion in opposition, and
the parties designated evidence in support of their respective positions.
Following a hearing, the trial court entered summary judgment in favor of
Ray’s. DeHeer now appeals.
Discussion and Decision [5] DeHeer maintains that the trial court erred in granting summary judgment in
favor of Ray’s. We review a summary judgment de novo, applying the same
standard as the trial court and drawing all reasonable inferences in favor of the
nonmoving party. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). In
conducting our review, we consider only those matters that were designated at
the summary judgment stage. Haegert v. McMullan, 953 N.E.2d 1223, 1229
(Ind. Ct. App. 2011). Summary judgment is appropriate if the designated
Court of Appeals of Indiana | Memorandum Decision 32A01-1512-CT-2313 | May 6, 2016 Page 3 of 8 evidence shows that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law. Hughley, 15 N.E.3d
at 1003; Ind. Trial Rule 56(C).
[6] The moving party bears the initial burden of demonstrating the “absence of any
genuine issue of fact as to a determinative issue.” Williams v. Tharp, 914 N.E.2d
756, 761 (Ind. 2009). Then the burden shifts to the nonmoving party to “come
forward with contrary evidence” showing a genuine issue for the trier of fact.
Id. at 762. The nonmoving party cannot rest upon the allegations or denials in
the pleadings. Syfu v. Quinn, 826 N.E.2d 699, 703 (Ind. Ct. App. 2005). In
Hughley, our supreme court emphasized that the moving party bears an onerous
burden of affirmatively negating the opponent’s claim. 15 N.E.3d at 1003. This
approach is based on the policy of preserving a party’s day in court, thus erring
on the side of allowing marginal cases to proceed to trial on the merits rather
than risking the short-circuiting of meritorious claims. Id. at 1003-04.
[7] In determining whether issues of material fact exist, we neither reweigh
evidence nor judge witness credibility. Peterson v. Ponda, 893 N.E.2d 1100, 1104
(Ind. Ct. App. 2008), trans. denied (2009). Rather, we must accept as true those
facts established by the designated evidence favoring the nonmoving party. Brill
v. Regent Commc’ns, Inc., 12 N.E.3d 299, 309-310 (Ind. Ct. App. 2014), trans.
denied. A trial court’s grant of summary judgment arrives on appeal clothed
with a presumption of validity. Williams, 914 N.E.2d at 762. We may affirm a
grant of summary judgment on any legal basis supported by the designated
evidence. Harness v. Schmitt, 924 N.E.2d 162, 165 (Ind. Ct. App. 2010). Court of Appeals of Indiana | Memorandum Decision 32A01-1512-CT-2313 | May 6, 2016 Page 4 of 8 [8] To recover on a theory of negligence, a plaintiff must establish three elements:
(1) a duty on the part of the defendant to conform his conduct to a standard of care arising from his relationship with the plaintiff, (2) a failure of the defendant to conform his conduct to the requisite standard of care required by the relationship, and (3) an injury to the plaintiff proximately caused by the breach.
Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991). Although summary judgment
is rarely appropriate in negligence cases due to their fact-sensitivity, a
determination concerning the existence of a duty is generally a matter of law to
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), May 06 2016, 9:11 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE R. Daniel Craven Logan C. Hughes Craven, Hoover & Blazek, PC Reminger Co., LPA Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Erika Jagger DeHeer, May 6, 2016 Appellant-Plaintiff, Court of Appeals Case No. 32A01-1512-CT-2313 v. Appeal from the Hendricks Superior Court Ray’s Trash Service, Inc., The Honorable Stephanie LeMay- Appellee-Defendant Luken, Judge Trial Court Cause No. 32D05-1410-CT-140
Crone, Judge.
Case Summary [1] Erika Jagger DeHeer brought a negligence action against Ray’s Trash Service,
Inc. (“Ray’s”), for injuries she suffered when she fell and cut her face on the
Court of Appeals of Indiana | Memorandum Decision 32A01-1512-CT-2313 | May 6, 2016 Page 1 of 8 inner rim of her rolling trash bin. The trial court granted summary judgment in
favor of Ray’s, and DeHeer appeals. Concluding that Ray’s affirmatively
negated an element of DeHeer’s negligence claim, we affirm.
Facts and Procedural History [2] The undisputed material facts are as follows. In November 2010, DeHeer
moved to a five-acre Noblesville farm. Shortly thereafter, she contacted Ray’s
to commence weekly trash and recycling pickup service. In conjunction with
Ray’s service, customers use Ray’s standard-issue trash and recycle bins, which
are large plastic containers with a hinged lid, handles, and two wheels for easy
transport. Inside the hinged lid is a large printed message, “PLEASE CLOSE
LID BEFORE MOVING.” Plaintiff’s Ex. 6. For the next year and a half,
DeHeer used the bins without incident, always closing the lid before moving
them, a practice which she considered to be “common sense.” Appellant’s
App. at 40.
[3] On the evening of May 13, 2012, DeHeer wheeled her trash and recycle bins to
the end of her dirt and gravel driveway for collection the next morning. On
May 14, she left around 7:15 a.m. to drive her son to his high school in
Indianapolis and noticed that the trash and recycling had not yet been collected.
When she returned about an hour and a half later, she noticed that the bins
were empty and lying on their sides in her driveway, lids open. She exited her
vehicle and bent down to grab the trash bin by its handles, which were
perpendicular to the ground. She did not close the lid. As she attempted to
Court of Appeals of Indiana | Memorandum Decision 32A01-1512-CT-2313 | May 6, 2016 Page 2 of 8 turn the bin upright, it rolled away from her and she fell forward, hitting her
nose and cheek on the plastic inner rim. She sought immediate treatment at the
plastic surgery center where she had undergone a previous cosmetic procedure.
Her injuries included a nasal bone fracture, nasal tissue avulsion laceration,
wounds to her right cheek and eyelid, and pain in her head and shoulder. She
did not notify Ray’s of the incident and continued to use Ray’s for her trash and
recycling service for five months thereafter.
[4] In May 2014, DeHeer filed a negligence action against Ray’s. Ray’s
subsequently filed a motion for summary judgment, claiming that it did not
breach a duty to DeHeer and, in the alternative, that DeHeer incurred any risk
associated with her use of the bins. DeHeer filed a motion in opposition, and
the parties designated evidence in support of their respective positions.
Following a hearing, the trial court entered summary judgment in favor of
Ray’s. DeHeer now appeals.
Discussion and Decision [5] DeHeer maintains that the trial court erred in granting summary judgment in
favor of Ray’s. We review a summary judgment de novo, applying the same
standard as the trial court and drawing all reasonable inferences in favor of the
nonmoving party. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). In
conducting our review, we consider only those matters that were designated at
the summary judgment stage. Haegert v. McMullan, 953 N.E.2d 1223, 1229
(Ind. Ct. App. 2011). Summary judgment is appropriate if the designated
Court of Appeals of Indiana | Memorandum Decision 32A01-1512-CT-2313 | May 6, 2016 Page 3 of 8 evidence shows that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law. Hughley, 15 N.E.3d
at 1003; Ind. Trial Rule 56(C).
[6] The moving party bears the initial burden of demonstrating the “absence of any
genuine issue of fact as to a determinative issue.” Williams v. Tharp, 914 N.E.2d
756, 761 (Ind. 2009). Then the burden shifts to the nonmoving party to “come
forward with contrary evidence” showing a genuine issue for the trier of fact.
Id. at 762. The nonmoving party cannot rest upon the allegations or denials in
the pleadings. Syfu v. Quinn, 826 N.E.2d 699, 703 (Ind. Ct. App. 2005). In
Hughley, our supreme court emphasized that the moving party bears an onerous
burden of affirmatively negating the opponent’s claim. 15 N.E.3d at 1003. This
approach is based on the policy of preserving a party’s day in court, thus erring
on the side of allowing marginal cases to proceed to trial on the merits rather
than risking the short-circuiting of meritorious claims. Id. at 1003-04.
[7] In determining whether issues of material fact exist, we neither reweigh
evidence nor judge witness credibility. Peterson v. Ponda, 893 N.E.2d 1100, 1104
(Ind. Ct. App. 2008), trans. denied (2009). Rather, we must accept as true those
facts established by the designated evidence favoring the nonmoving party. Brill
v. Regent Commc’ns, Inc., 12 N.E.3d 299, 309-310 (Ind. Ct. App. 2014), trans.
denied. A trial court’s grant of summary judgment arrives on appeal clothed
with a presumption of validity. Williams, 914 N.E.2d at 762. We may affirm a
grant of summary judgment on any legal basis supported by the designated
evidence. Harness v. Schmitt, 924 N.E.2d 162, 165 (Ind. Ct. App. 2010). Court of Appeals of Indiana | Memorandum Decision 32A01-1512-CT-2313 | May 6, 2016 Page 4 of 8 [8] To recover on a theory of negligence, a plaintiff must establish three elements:
(1) a duty on the part of the defendant to conform his conduct to a standard of care arising from his relationship with the plaintiff, (2) a failure of the defendant to conform his conduct to the requisite standard of care required by the relationship, and (3) an injury to the plaintiff proximately caused by the breach.
Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991). Although summary judgment
is rarely appropriate in negligence cases due to their fact-sensitivity, a
determination concerning the existence of a duty is generally a matter of law to
be resolved by the trial court. Sparks v. White, 899 N.E.2d 21, 23 (Ind. Ct. App.
2008). In cases where the determination of duty is interwoven with factual
issues such as the foreseeability of harm, it may be a mixed question of law and
fact to be resolved by the factfinder. Id.
[9] DeHeer bases her negligence claim on Sections 388 and 392 of the Restatement
(Second) of Torts. Section 388 reads,
One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier
(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
Court of Appeals of Indiana | Memorandum Decision 32A01-1512-CT-2313 | May 6, 2016 Page 5 of 8 (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.
Coffman v. PSI Energy, Inc., 815 N.E.2d 522, 536 n.5 (Ind. Ct. App. 2004)
(quoting RESTATEMENT (SECOND) OF TORTS § 388 (1965)), trans. denied (2005).
[10] Section 392 reads,
One who supplies to another, directly or through a third person, a chattel to be used for the supplier’s business purposes is subject to liability to those for whose use the chattel is supplied, or to those whom he should expect to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by persons for whose use the chattel is supplied
(a) if the supplier fails to exercise reasonable care to make the chattel safe for the use for which it is supplied or,
(b) if he fails to exercise reasonable care to discover its dangerous condition or character, and to inform those whom he should expect to use it.
McGlothlin v. M & U Trucking, Inc., 688 N.E.2d 1243, 1245 (Ind. 1997) (quoting
RESTATEMENT (SECOND) OF TORTS § 392 (1965)).
[11] As a supplier, Ray’s had a duty to provide bins reasonably suitable for their
intended purpose of holding and transporting trash and recyclables to the curb
and back. The wheels contribute to this intended use by facilitating the bins’
transport. The fact that the chief function of a wheel is to roll is open and
Court of Appeals of Indiana | Memorandum Decision 32A01-1512-CT-2313 | May 6, 2016 Page 6 of 8 obvious to the user, especially one such as DeHeer, who had used the bins
without incident for eighteen months prior to her accident. As for the inner rim
on which DeHeer struck her face, the clearly printed admonition to close the lid
before moving informs the expected user concerning the safest usage of the bin.
DeHeer testified that she had made it a habit to always close the lid because it
was “common sense” to do so. Appellant’s App. at 40. Even so, Plaintiff’s
Exhibit A depicts an inner rim that appears to be made of the same plastic as
the bin itself. The condition of the rim would have been readily apparent to
DeHeer, who for eighteen months had been the primary person responsible for
opening and closing the lid to load and transport the bin. In short, the chattel
supplied by Ray’s was neither dangerous nor otherwise unsuitable for its
intended use.
[12] As for DeHeer’s assertion that Ray’s breached a duty to ensure that her bins
would be left in an upright position after collection, she designated no evidence
to show that Ray’s owed such a duty or otherwise assumed a duty to do so. See
Yost v. Wabash College, 3 N.E.3d 509, 517 (Ind. 2014) (emphasizing that
assumption of duty “requires affirmative, deliberate conduct such that it is
apparent that the actor … specifically undertook to perform the task that he is
charged with having performed negligently.”). Even if Ray’s had assumed such
an expansive duty to ensure that the bins did not tip over during collection, it
could not possibly ensure that the bins would remain upright between the time
of collection and the time of retrieval by the customer. Simply put, Ray’s did
not owe DeHeer a duty to ensure that her bins would be upright when she
Court of Appeals of Indiana | Memorandum Decision 32A01-1512-CT-2313 | May 6, 2016 Page 7 of 8 retrieved them. 1 Accordingly, we affirm the trial court’s grant of summary
judgment.
[13] Affirmed.
Najam, J., and Robb, J., concur.
1 Because we affirm on this basis, we need not address Ray’s’ alternate theory of incurred risk.
Court of Appeals of Indiana | Memorandum Decision 32A01-1512-CT-2313 | May 6, 2016 Page 8 of 8