FILED Dec 27 2023, 8:59 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES Timothy F. Devereux Angela J. Della Rocco Wagner Reese, LLP Amy K. Fisher Carmel, Indiana McCarter & English, LLP Carmel, Indiana
IN THE COURT OF APPEALS OF INDIANA
Kiera Isgrig, December 27, 2023 Appellant-Plaintiff, Court of Appeals Case No. 23A-CT-1332 v. Appeal from the Monroe Circuit Court Trustees of Indiana University, The Honorable Geoffrey J. Appellees-Defendants. Bradley, Judge Trial Court Cause No. 53C01-2004-CT-723
Opinion by Judge Tavitas Judges Pyle and Foley concur.
Tavitas, Judge.
Case Summary [1] Kiera Isgrig was studying in a building at Indiana University Bloomington
when a window fell out of the wall, striking and injuring her. Isgrig filed a
Court of Appeals of Indiana | Opinion 23A-CT-1332 | December 27, 2023 Page 1 of 16 negligence claim against Indiana University and the Trustees of Indiana
University (collectively “the University”) 1 based on the theory of res ipsa
loquitur. The University moved for summary judgment, which the trial court
granted. Isgrig appeals and argues that the trial court erred by concluding as a
matter of law that the doctrine of res ipsa loquitur is inapplicable to the facts
here. We agree and, accordingly, reverse and remand.
Issues [2] Isgrig presents one issue for our review, which we restate as whether the trial
court improperly granted summary judgment in favor of the University based
on its conclusion that the doctrine of res ipsa loquitur was inapplicable to Isgrig’s
negligence claim.
Facts [3] The facts here are relatively undisputed. On April 28, 2018, Isgrig was a
student at the University and studying for final exams with her friends in Room
138 of Francis Morgan Swain Hall (“Swain Hall”)—a building on the
Bloomington campus. Isgrig sat at a table with her friends with her back to the
wall. Mounted in the wall was an exterior window. As Isgrig sat with her
1 Isgrig’s complaint named both Indiana University and the Trustees of Indiana University as defendants. The trial court subsequently granted the defendants’ motion to dismiss Indiana University as a defendant. See Ind. Code § 21-27-4-2 (providing that the Board of Trustees of Indiana University may sue and be sued); see also Clemons v. Trustees of Indiana Univ., 2020 WL 2039752, at *1 n.1 (S.D. Ind. Apr. 28, 2020) (noting that, although defendant named “Indianapolis [sic] University Law School” as a defendant, the proper suable entity was the “Trustees of Indiana University.”). Thus, only the Trustees of Indiana University remain as defendants.
Court of Appeals of Indiana | Opinion 23A-CT-1332 | December 27, 2023 Page 2 of 16 friends, the window fell out of the wall and landed on Isgrig’s head. The glass
in the window shattered, leaving glass shards over Isgrig and the table at which
she was sitting. No one in Isgrig’s group of friends tampered with the window
before it fell. Isgrig’s friends pulled the heavy window off Isgrig, and Isgrig
went to the restroom to attempt to clean herself off. Isgrig’s friends, however,
soon drove her to the emergency room.
[4] The window, after it had fallen, and the area in which Isgrig had been sitting
were captured in the following photo:
Appellant’s App. Vol. II p. 99.
[5] After the window fell, Kevin Ashley, a carpenter employed by the University,
was dispatched to the room. Ashley noted that the window had a metal frame
Court of Appeals of Indiana | Opinion 23A-CT-1332 | December 27, 2023 Page 3 of 16 with adjustable blinds between two glass panes. When in its casing, the bottom
panel of the window could be raised vertically to partially open the window.
Ashley noted that two of the window’s four sash springs were broken, but he
also later explained that broken sash springs should not cause a window to fall
out of its casing with no warning. Ashley found no other damage to the
window that would explain why it came out of its casing, absent human
involvement at some point previously.
[6] Further investigation revealed that the University conducted only reactive
maintenance on its windows and did not perform any preventive maintenance.
That is, windows are not serviced unless a work order regarding a problem with
the window was submitted. The last time the University had repaired the
window in question was in March 2017 in response to a work order stating that
the blinds would not raise. Repairing the blinds would have required the
maintenance staff to remove the window from its casing, at which time any
other faults, such as broken sash springs, would have been repaired.
[7] On April 23, 2020, Isgrig filed a complaint against the University alleging
negligence and relying on the doctrine of res ipsa loquitur. The University filed
its answer on May 20, 2020. On June 27, 2022, the University moved for
summary judgment along with its designated evidence in support of its motion.
The University argued that it had neither actual nor constructive knowledge
regarding any issue with the window, that the doctrine of res ipsa loquitur did not
relieve Isgrig of proving that the University had either actual or constructive
knowledge of an issue with the window, and that the University did not have
Court of Appeals of Indiana | Opinion 23A-CT-1332 | December 27, 2023 Page 4 of 16 exclusive control of the window, thereby rendering res ipsa loquitur inapplicable.
After successfully seeking an extension of time, Isgrig filed a reply to the
University’s motion for summary judgment on January 19, 2023, along with
her designated evidence in opposition to summary judgment. Isgrig argued that
the window was under the exclusive control or management of the University
and that, under the facts of this case, res ipsa loquitur allows an inference of
negligence on the part of the University.
[8] The trial court held a summary judgment hearing on April 14, 2023, and, on
May 24, 2023, entered an order granting the University’s motion for summary
judgment. Isgrig now appeals.
Discussion and Decision [9] On appeal, Isgrig argues that the trial court erred by granting summary
judgment in favor of the University because the doctrine of res ipsa loquitur
applies to fixtures in premises liability cases and that, given the broad definition
of “exclusive control,” there is at least a genuine issue of material fact as to
whether the window was under the exclusive control and management of the
University at the time it fell on Isgrig. The University responds that the trial
court properly granted summary judgment in its favor because: (1) Isgrig cannot
make a prima facie case of negligence under a premises liability standard, (2) res
ipsa loquitur cannot apply if a plaintiff cannot also establish the elements of
premises liability, and (3) res ipsa loquitur is inapplicable under the facts of the
present case.
Court of Appeals of Indiana | Opinion 23A-CT-1332 | December 27, 2023 Page 5 of 16 A. Standard of Review
[10] When this Court reviews a grant or denial of a motion for summary judgment,
we stand in the shoes of the trial court. Serbon v. City of E. Chicago, 194 N.E.3d
84, 91 (Ind. Ct. App. 2022) (citing Minser v. DeKalb Cnty. Plan Comm’n, 170
N.E.3d 1093, 1098 (Ind. Ct. App. 2021)). “Summary judgment is appropriate
only ‘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.’” Id. (quoting Minser, 170 N.E.3d at 1098; citing Ind. Trial Rule
56(C)). The party moving for summary judgment bears the burden of making a
prima facie showing that there is no genuine issue of material fact and that it is
entitled to judgment as a matter of law. Id. (citing Minser, 170 N.E.3d at 1098).
Only if the moving party meets this prima facie burden does the burden then
shift to the nonmoving party to show the existence of a genuine issue of
material fact. Id. (citing Minser, 170 N.E.3d at 1098).
B. Premises Liability and Res Ipsa Loquitur
[11] In general, to prevail on a claim of negligence, the plaintiff must show: (1) a
duty owed to the plaintiff by the defendant; (2) a breach of duty by allowing
conduct to fall below the applicable standard of care; and (3) compensable
injury proximately caused by the defendant’s breach of duty. Goodwin v.
Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016). Isgrig seeks to
demonstrate a genuine issue of material fact by applying the doctrine of res ipsa
loquitur to provide an inference that the University breached its duty and was
negligent. The University, however, argues that res ipsa loquitur is inapplicable
Court of Appeals of Indiana | Opinion 23A-CT-1332 | December 27, 2023 Page 6 of 16 unless a plaintiff also establishes that a defendant would be liable under a
theory of premises liability. Accordingly, we must analyze the intersection of
the doctrines of res ipsa loquitur and premises liability.
1. Premises Liability
[12] In Burrell v. Meads, 569 N.E.2d 637 (Ind. 1991), our Supreme Court adopted the
following language from the Restatement (Second) of Torts regarding the
liability of a premises owner when an invitee is injured by a condition on the
premises owner’s property:
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, 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.
Id. at 639-40 (quoting Restatement (Second) of Torts § 343 (1965)).
2. Res Ipsa Loquitur
[13] As for the doctrine of res ipsa loquitur, our Supreme Court has summarized the
law as follows:
Res ipsa loquitur is translated from Latin as “the thing speaks for itself.” The doctrine of res ipsa loquitur recognizes that in some
Court of Appeals of Indiana | Opinion 23A-CT-1332 | December 27, 2023 Page 7 of 16 situations, an occurrence is so unusual, that absent reasonable justification, the person in control of the situation should be held responsible. The central question in res ipsa loquitur cases is whether the incident probably resulted from the defendant’s negligence rather than from some other cause. To establish this inference of negligence, a plaintiff must demonstrate: (1) that the injuring instrumentality was within the exclusive management and control of the defendant, and (2) the accident is of the type that ordinarily does not happen if those who have management or control exercise proper care. Whether the doctrine of res ipsa loquitur applies in any given negligence case is a mixed question of law and fact.
Griffin v. Menard, Inc., 175 N.E.3d 811, 814-15 (Ind. 2021) (citations omitted).
[14] “The exclusive control requirement of the res ipsa loquitur doctrine requires that
the plaintiff demonstrate that the defendant had exclusive control over the
instrumentality at the time of the alleged negligent act.” Rector v. Oliver, 809
N.E.2d 887, 892 (Ind. Ct. App. 2004) (citing Deming Hotel Co. v. Prox, 142 Ind.
App. 603, 235 N.E.2d 613 (1968)); see also Whetstine v. Menard, Inc., 161 N.E.3d
1274, 1284 (Ind. Ct. App. 2020) (“To invoke res ipsa loquitur, the plaintiff must
demonstrate that the defendant had exclusive control of the injuring
instrumentality at the time of injury.”), trans. denied. Moreover, “[e]xclusive
control is an expansive concept which focuses upon who has the right or power
of control and the opportunity to exercise it.” Whetstine, 161 N.E.3d at 1284
(citing Shull v. B.F. Goodrich Co., 477 N.E.2d 924, 926 (Ind. Ct. App. 1985),
trans. denied).
Court of Appeals of Indiana | Opinion 23A-CT-1332 | December 27, 2023 Page 8 of 16 [15] The ultimate determination of whether res ipsa loquitur applies in any given
negligence case is a mixed question of law and fact, but the question of whether
the plaintiff’s evidence includes all the elements of res ipsa loquitur is a question
of law. St. Mary’s Ohio Valley Heart Care, LLC v. Smith, 112 N.E.3d 1144, 1150
(Ind. Ct. App. 2018) (citing Syfu v. Quinn, 826 N.E.2d 699, 703 (Ind. Ct. App.
2005)). Thus, if a plaintiff fails to present evidence that could establish one
element (or more than one element) of res ipsa loquitur, then application of the
doctrine fails as a matter of law. See id.
3. Applicability of Res Ipsa Loquitur in Premises Liability Cases
[16] Isgrig contends that she designated evidence sufficient to permit her to proceed
to trial on a theory of res ipsa loquitur, i.e., that the window was under the
exclusive control or management of the University and that windows do not
ordinarily fall out of walls if those who have management or control have
exercised proper care. Citing our Supreme Court’s opinion in Griffin, the
University argues that Isgrig cannot succeed under a theory of res ipsa loquitur
unless Isgrig can first establish that the University is liable under a theory of
premises liability. To address the parties’ arguments requires us to review
several cases that have addressed the applicability of the doctrine of res ipsa
loquitur in which the plaintiff was on the premises as an invitee of the defendant.
[17] In Cergnul v. Heritage Inn of Ind., Inc., 785 N.E.2d 328 (Ind. Ct. App. 2003), trans.
denied, the plaintiff fell and was injured when a handrail came out of the wall at
the hotel in which she was staying. The plaintiff sued the hotel and sought a
jury instruction on res ipsa loquitur, but the trial court granted judgment on the Court of Appeals of Indiana | Opinion 23A-CT-1332 | December 27, 2023 Page 9 of 16 evidence in favor of the hotel. On appeal, this Court affirmed, concluding that,
even if the hotel was in exclusive control of the handrail, there were reasons
other than negligence that the handrail could have come lose, such as
vandalization by another patron. Id. at 330. Accordingly, we affirmed the trial
court. Id.
[18] Two years later, another panel of this Court addressed a slightly different
situation. In Rector v. Oliver, 809 N.E.2d 887 (Ind. Ct. App. 2004), trans. denied,
the plaintiff was injured when a light fixture fell from the ceiling in a video
store. On appeal from the grant of summary judgment to the defendant, we
held that there was evidence that the defendant was in exclusive control of the
light at the time of the injury: “[t]he negligent act could have been the
installation of the light fixture, but the jury could also reasonably infer that the
negligence was the failure to reasonably inspect and maintain the premises.”
809 N.E.2d at 892. We also could not find as a matter of law that the defect in
the light could not have been discovered by reasonable maintenance and
inspection. Id. at 895.
[19] Although the defendant in Rector claimed that the negligent act was the
installation of the light fixture, we emphasized that the plaintiff was not
required to prove that the defendant had installed the light fixture, stating:
[I]t is not necessary for a plaintiff to exclude every other possibility other than the defendant’s negligence as a cause. Nor is it required that the plaintiff present direct evidence of the cause of the accident, for this . . . begs the question. The doctrine of res
Court of Appeals of Indiana | Opinion 23A-CT-1332 | December 27, 2023 Page 10 of 16 ipsa loquitur allows an inference of negligence to be drawn when direct evidence is lacking.
Id. at 891 (citing K-Mart Corp. v. Gibson, 563 N.E.2d 667, 671 (Ind. Ct. App.
1990), trans. denied). Under the facts of that case, the Rector Court held that
there was a genuine issue of material fact as to whether the negligent act was
the installation of the light fixture or the failure to reasonably inspect and
maintain the premises: “[r]egardless of who installed the light fixture, we
cannot say that a light fixture falling from the ceiling of a business is the sort of
event which ordinarily happens if those who have the management and control
exercise proper care.” Id. at 892. Thus, it was for the trier of fact to determine
whether res ipsa loquitur applied. Id. Ultimately, we reversed the grant of
summary judgment in favor of the defendant and remanded for trial. Id. at 895.
[20] Several years after Rector, our Supreme Court addressed the applicability of res
ipsa loquitur in premises liability cases. In Griffin, the plaintiff was injured when
he removed a box containing a sink from a store shelf and the bottom of the box
collapsed, causing the sink to fall out and strike the plaintiff. On appeal from
the trial court’s grant of summary judgment in favor of the defendant store, our
Supreme Court first concluded that the plaintiff had not successfully rebutted
the defendant’s prima facie showing that the defendant was not liable under a
theory of premises liability. 175 N.E.3d at 813-14. Specifically, the Court held
that the plaintiff had not rebutted the defendant’s showing that the defendant
had no actual or constructive knowledge that the box was defective. Id. at 814.
Court of Appeals of Indiana | Opinion 23A-CT-1332 | December 27, 2023 Page 11 of 16 [21] The Court then addressed the plaintiff’s claim that he could proceed on a theory
of res ipsa loquitur. Id. at 814-15. The Griffin Court noted that the Rector Court
had “called into question the application of the doctrine of res ipsa loquitur in a
premises liability action.” Griffin, 175 N.E.3d at 815 (citing Rector, 809 N.E.2d
at 895). In Rector, we had noted:
[T]he position adopted from the Restatement (Second) of Torts in Burrell, supra, states that a possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, the conditions listed therein are met. To say that a premises owner may be liable under the doctrine of res ipsa loquitur when they could not be liable under the premises liability standard would seem to fly in the face of the standard adopted in Burrell.
809 N.E.2d at 895 (quoted in Griffin, 175 N.E.3d at 815).
[22] Our Supreme Court held that, although Rector did not “completely forclose[]
the application of res ipsa to a premises liability action,” Rector made clear that
“if there’s no liability under a premises liability standard, res ipsa cannot apply.”
Griffin, 175 N.E.3d at 815 (citing Rector, 809 N.E.2d at 895). 2 “As such,
determining the res ipsa issue is necessarily dependent on whether a defendant
can be liable under premises liability in the first place.” Id. Accordingly, the
2 We believe this reads too much into our opinion in Rector. In Rector, we did not suggest that the doctrines of res ipsa loquitur and premises liability were incompatible; rather, we held that, despite any seeming conflicts, the two doctrines could be harmonized. Indeed, we ultimately held that the trial court improperly granted summary judgment because the jury could find that the defendant was negligent based on the doctrine of res ipsa loquitur and that this did not conflict with premises liability principles. 809 N.E.2d at 895- 96.
Court of Appeals of Indiana | Opinion 23A-CT-1332 | December 27, 2023 Page 12 of 16 Griffin Court held that the plaintiff’s res ipsa loquitur claim did not preclude
summary judgment for the defendant. Id.
[23] Even if res ipsa loquitur could apply in that case, the Griffin Court held that the
plaintiffs did not show that the injuring instrumentality was within the exclusive
management and control of the defendant because the store’s customers had
access to the sink box. Id. Thus, the Court held that “it seems like speculation
that the only way the sink could have fallen out of the box was because Menard
was negligent when the box could have been handled/tampered with by
another customer.” Id. at 816. In so holding, the Court noted that “the
showing of exclusive control is difficult when the injuring instrumentality is
accessible to customers. It’s also a high bar to show that an occurrence is ‘so
unusual’ that it would not ordinarily happen in the absence of someone’s
negligence.” Id. (citing Johnson v. Blue Chip Casino, LLC, 110 N.E.3d 375, 378
(Ind. Ct. App. 2018), trans. denied).
[24] Although this might seem to sound the death knell for the application of res ipsa
loquitur in premises liability cases, the Griffin Court noted that res ipsa loquitur
might still apply under some circumstances, writing:
[W]e decline to hold that res ipsa can never apply to a premises liability case. If an injury results from a fixture or other component that customers did not or could not disturb—such as a chandelier suspended from the ceiling, or a set of shelves bolted to the wall—and the incident would not normally occur absent negligence, res ipsa could be appropriate.
Court of Appeals of Indiana | Opinion 23A-CT-1332 | December 27, 2023 Page 13 of 16 Id. (emphasis added).
[25] To be sure, Griffin could be read to hold, as argued by the University, that a
plaintiff in a premises liability case must first establish all the elements of
premises liability before res ipsa loquitur can apply. See 175 N.E.3d at 815. But
to adopt such a strict reading seems, to us, illogical. Indeed, if a plaintiff can
establish the elements of premises liability, there would simply be no need to
also establish the elements of res ipsa loquitur. Instead, we read Griffin, as a
whole, to instruct that res ipsa loquitur can apply in a premises liability case, but
only if the injury “results from a fixture or other component that customers did
not or could not disturb—such as a chandelier suspended from the ceiling, or a
set of shelves bolted to the wall—and the incident would not normally occur
absent negligence.” 3 Id. at 816.
C. Isgrig May Proceed on a Theory of Res Ipsa Loquitur
[26] Griffin narrowed the applicability of the doctrine of res ipsa loquitur in premises
liability cases to situations where the injury results from a “fixture or other
component that customers did not or could not disturb[.]” 175 N.E.3d at 816.
Thus, the question becomes whether the falling window is more like the falling
3 This conclusion/reading does not conflict with the premises liability doctrine as adopted in Burrell. If a trier of fact finds the defendant liable under a theory of res ipsa loquitur, it would follow that the defendant would also be liable under a theory of premises liability, i.e., that the defendant knew or should have known about the condition on the premises and realized that it involved an unreasonable risk of harm to invitees, that the defendant should have expected that the invitee will not discover or realize the danger or would fail to protect themselves against it, and that the defendant failed to exercise reasonable care to protect the invitee against the danger.
Court of Appeals of Indiana | Opinion 23A-CT-1332 | December 27, 2023 Page 14 of 16 ceiling light in Rector or more like the falling handrail in Cergnul and the sink
box in Griffin. Based on the designated evidence, we conclude that the falling
window is more like the falling ceiling light. Indeed, like the light in Rector, the
window was a fixture of the building. As for whether the window could have
been “disturbed” by others, there was evidence that the University exercised
exclusive control and management over the window at the time it fell out of the
wall. See Whetstine, 161 N.E.3d at 1284. The University had the right or power
to control the window. See id.
[27] We also cannot say that a window suddenly falling out of a wall—with no one
interacting with it—is the sort of thing that can occur absent negligence. We
acknowledge that the window was in a position such that others could access it
by raising and lowering the windowpanes or the internal window blinds. But a
trier of fact could reasonably conclude that this should not cause a window to
fall out of a wall absent negligence.
[28] Accordingly, we conclude that the designated evidence, including the fact that
the University performed no preventive maintenance on the windows, creates a
genuine issue of material fact regarding whether the University can be liable for
the injuries caused by the window inexplicably falling from the wall and hitting
Isgrig. See 62 Am. Jur. 2d Premises Liability § 60 (Oct 2023 Update) (noting
that res ipsa loquitur “doctrine has also been held applicable when a trapdoor
gave way, a door came off its hinge, and in cases involving injuries that were
caused by overhead doors, elevator doors, sliding doors, or glass falling from
Court of Appeals of Indiana | Opinion 23A-CT-1332 | December 27, 2023 Page 15 of 16 doors or windows) (emphasis added) (footnotes omitted). The trial court, thus,
erred by granting summary judgment to the University.
Conclusion [29] We conclude that the trial court erred by granting the University’s motion for
summary judgment. Accordingly, we reverse the trial court’s grant of summary
judgment in favor of the University and remand for proceedings consistent with
this opinion.
[30] Reversed and remanded.
Pyle, J., and Foley, J., concur.
Court of Appeals of Indiana | Opinion 23A-CT-1332 | December 27, 2023 Page 16 of 16