FILED Sep 27 2024, 8:47 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
IN THE
Court of Appeals of Indiana Mahari Mrach Oukbu and Nitsihiti Abraham Appellants-Plaintiffs,
v.
Amazon, et. al., Appellees-Defendants.
September 27, 2024 Court of Appeals Case No. 24A-CT-254 Appeal from the Hamilton Superior Court The Honorable David K. Najjar, Judge Trial Court Cause No. 29D05-2308-CT-7700
Opinion by Chief Judge Altice Judge Bailey concurs. Judge Mathias concurs with separate opinion.
Altice, Chief Judge.
Court of Appeals of Indiana | Opinion 24A-CT-254 | September 27, 2024 Page 1 of 16 Case Summary [1] This negligence action arises from an incident on September 2, 2022, where
Mahari Mrach Oukbu was struck by an oncoming vehicle after Oukbu stepped
out of his tractor-trailer truck onto a county road. Oukbu was en route to a
fulfillment center operated by Amazon Inc. and owned by CF Mount Comfort
DST (collectively, Amazon) to deliver goods to the center.
[2] Oukbu filed a complaint against Amazon on April 24, 2023, alleging negligent
maintenance, design, and control of the fulfillment center’s entrances. Oukbu
further alleged that Amazon knew that the layout of its entrances and lack of
lighting and signage on its premises routinely endangered arriving truck drivers
by causing them to become confused and exit their trucks on the public road
across from the facility. Nitsihiti Abraham—Oukbu’s wife—also brought a loss
of consortium claim that arose from the circumstances.
[3] Amazon filed a motion for judgment on the pleadings pursuant to Ind. Trial
Rule 12(C), arguing that Oukbu’s allegations failed to establish that Amazon
owed a duty to him and that any negligence on Amazon’s part was not the
proximate cause of Oukbu’s injuries. Following a hearing, the trial court
granted Amazon’s motion, concluding that Amazon did not owe Oukbu a duty
under Indiana law.
[4] Oukbu appeals, arguing that granting Amazon’s motion for judgment on the
pleadings was error because he sufficiently alleged that Amazon had a duty to
Court of Appeals of Indiana | Opinion 24A-CT-254 | September 27, 2024 Page 2 of 16 protect him from being struck by a third-party motorist. We reverse and
remand for further proceedings consistent with this opinion.
Facts & Procedural History 1
[5] The facts, as set forth in Oukbu’s complaint, are as follows: In late August
2022, Amazon contacted Oukbu, an independent contractor/truck driver, about
delivering goods to its Greenfield fulfillment center. The fulfillment center has
three entrances that are accessible from County Road 300 North that runs along
the south side of the center. When a motorist approaches from the west on
County Road 300 North, he encounters two entrances to the facility along the
north side of the county road that are marked with “no truck” signs. Appellants’
Appendix Vol. II at 47. There was no signage posted at either of the two
entrances to inform incoming truck drivers as to where they were expected to
enter the premises. The third entrance when approaching from the west is the
one to be used by delivery drivers, and it is about 500 feet east of the fulfillment
center building.
[6] In the pre-dawn hours of September 2, 2022, Oukbu approached the fulfillment
facility from the west on County Road 300 North to make a delivery. After
encountering the second “no trucks” entrance, Oukbu became confused, as he
1 We heard oral argument in this case and in Kaur v. Amazon, et. al, No. 23A-CT-02059, which presents the same issue, on August 20, 2024, in the Indiana Court of Appeals courtroom at the Indiana Statehouse. We commend counsel on the excellent quality of their written and oral advocacy. We hand down this case contemporaneously with Kaur.
Court of Appeals of Indiana | Opinion 24A-CT-254 | September 27, 2024 Page 3 of 16 could not discern any other entrances serving the facility. As a result, Oukbu
stopped his truck in the middle lane of County Road 300 North, a bi-directional
turn lane, across from the fulfillment center, to determine where he could access
the premises. This was Oukbu’s first trip to the fulfillment facility, and Amazon
had not provided him with any instructions as to where to enter the premises.
Amazon only gave Oukbu the facility’s address and a delivery time.
[7] Immediately after Oukbu stepped out of his truck and onto the road, he was
struck and severely injured by a vehicle driven by an eastbound motorist, Bruce
Gibson. At the scene of the crash, Gibson told a Greenfield police officer that
“you see these truck drivers all the time stopping and getting out here.” Id. at
51. Additionally, an Amazon employee who witnessed the accident told
investigating police officers that “Amazon sees lost truck drivers get out of their
trucks at that spot every day.” Id. at 52-53.
[8] On July 6, 2023, Oukbu filed a complaint against Amazon, 2 alleging that
Amazon owed him a duty of reasonable care, and that Amazon breached that
duty because the lighting and defective and confusing signage at the fulfillment
center created a dangerous condition for delivery drivers. Oukbu alleged that
Amazon’s signage was confusing because the first two entrances with the no
trucks signs were not sufficiently illuminated, and there was no additional
signage directing delivery drivers to the proper entrance.
2 While Oukbu’s complaint included a negligence count against Gibson, he is not a party to this appeal.
Court of Appeals of Indiana | Opinion 24A-CT-254 | September 27, 2024 Page 4 of 16 [9] After Amazon answered the complaint and denied the allegations, it moved for
judgment on the pleadings pursuant to T.R. 12(C). The trial court granted
Amazon’s motion on January 4, 2024, concluding that Amazon had no duty to
guard against injury to Oukbu from the negligent acts of someone over whom
they had no control and when the injury occurred off their premises. In
arriving at that result, the trial court rejected Oukbu’s reliance on Lutheran Hosp.
of Ind., Inc. v. Blaser, 634 N.E.2d 864, 870 (Ind. Ct. App. 1994), where a panel of
this court determined that the defendant hospital was liable to the plaintiff for
her injuries after a vehicle struck her in the parking lot driveway because the
hospital had specifically permitted pedestrians and vehicles to use the “exit” as
an entrance to the lot with no safeguards or warnings. The trial court observed
that Oukbu did not allege that Amazon created a hazardous condition on its
premises and/or that it exerted any control over Gibson or County Road 300
North. In its order, the trial court acknowledged this court’s holding in
Precedent Partners, I, L.P. v. Hulen, 863 N.E.2d 328, 332-33 (Ind. Ct. App. 2007),
where it was determined that the law does not impose a duty on a business to
guard against injury to the public from the negligent acts of someone over
whom the business has no control and which injury occurs off its premises.
[10] Oukbu now appeals.
Standard of Review [11] A motion for judgment on the pleadings pursuant to T.R. 12(C) attacks the
legal sufficiency of the pleadings. See Davis v. Ford Motor Co., 747 N.E.2d 1146,
Court of Appeals of Indiana | Opinion 24A-CT-254 | September 27, 2024 Page 5 of 16 1149 (Ind. Ct. App. 2001), trans. denied. In reviewing a trial court’s decision on
a motion for judgment on the pleadings, we conduct a de novo review. Murray
v. City of Lawrenceburg, 925 N.E2d 728, 731 (Ind. 2010). We only examine the
pleadings and any facts of which we may take judicial notice, with all well-
pleaded material facts alleged in the complaint taken as admitted. Waldrip v.
Waldrip, 976 N.E.2d 102, 110 (Ind. Ct. App. 2012).
[12] The test to be applied when ruling on a T.R. 12(C) motion is whether, in a light
most favorable to the non-moving party and “with every intendment regarded
in his favor, the complaint is sufficient to constitute any valid claim.” Brugh v.
Milestone Contractors, 202 N.E3d 1091, 1094 (Ind. Ct. App. 2023), trans. denied
(emphasis added). We will affirm the trial court’s judgment on a T.R. 12(C)
motion when it is clear from the face of the pleadings that one of the parties
cannot in any way succeed under the operative facts and allegations made
therein. Veolia Water Indianapolis, LLC v. Nat’l Tr. Ins. Co., 3 N.E.3d 1, 5 (Ind.
2014).
Discussion and Decision [13] Oukbu maintains that the trial court erred in granting Amazon’s T.R. 12(C)
motion because his complaint sufficiently alleged that Amazon owed a duty to
him—its business invitee—to protect him from the foreseeable harm and the
dangerous condition that Amazon created, i.e., the defective lighting and
signage on its premises. Oukbu further claims that the complaint sufficiently
alleged that Amazon knew that the dangerous condition confused truck driver
Court of Appeals of Indiana | Opinion 24A-CT-254 | September 27, 2024 Page 6 of 16 invitees, causing them to stop and get out of their truck in the road each day.
And despite Amazon’s actual knowledge of such dangerous conditions, it
“failed to warn its invitees of this latent peril.” Appellants’ Appendix Vol II at 50-
55, 59-61.
[14] A negligence claim is established by showing (1) a duty owed by the defendant
to conform its conduct to a standard of care arising from its relationship with
the plaintiff; (2) a breach of that duty; and (3) an injury proximately caused by
the breach of that duty. City of Indianapolis v. Johnson, 736 N.E.2d 295, 297 (Ind.
Ct. App. 2000). Absent a duty owed to the plaintiff by the defendant, there can
be no actionable negligence. Wiley v. ESG Sec. Inc., 187 N.E.3d 267, 272 (Ind.
Ct. App. 2022), trans. denied.
[15] In premises liability cases, whether a duty is owed depends primarily upon
whether the defendant was in control of the premises when the accident
occurred. Rhodes v. Wright, 805 N.E.2d 382, 385 (Ind. 2004). Generally, a
landowner is not liable to its business invitees for the acts of a third-party over
whom it had no control, and when the injuries do not occur on the landowner’s
property. State v. Flanigan, 489 N.E.2d 1216, 1218 (Ind. Ct. App. 1986), trans.
denied. On the other hand, liability is not limited to the area owned or leased
“but extends to adjoining areas which harbor a dangerous condition that is
created by the owner’s . . . use of such areas.” Ember v. B.F.D., 490 N.E.2d
764, 773 (Ind. Ct. App. 1986), trans. denied. A duty of reasonable care may be
extended beyond the business premises “when it is reasonable for invitees to
believe the invitor controls premises adjacent to his own or where the invitor
Court of Appeals of Indiana | Opinion 24A-CT-254 | September 27, 2024 Page 7 of 16 knows his invitees customarily use such adjacent premises in connection with
the invitation.” Id. at 772. Moreover, a person may not use his land in such a
way that would injure the interests of those not on his land, including users of
public ways. Justice v. CSC Transp., Inc., 908 F.2d 119, 123 (7th Cir. 1990)
(applying Indiana law). When the activities conducted on the business
premises affect the risk of injury off the premises, “the landowner may be under
a duty to correct the condition or guard against foreeeable injuries.” Lutheran
Hospital, 634 N.E.2d at 870.
[16] Amazon asserts that our Supreme Court’s opinion in Reece v. Tyson Fresh Meats,
Inc., 173 N.E.3d 1031, 1041 (Ind. 2021), controls the outcome here. In Reece, a
motorcyclist traveling on a public roadway adjacent to Tyson’s property
suffered catastrophic injuries after colliding with a motorist. The motorcyclist’s
guardian brought an action against the other driver and Tyson, claiming that
Tyson was negligent “for allowing grass to grow so high on their property that
it blocked the view of the roadway.” Id. at 1033. In affirming the trial court’s
grant of summary judgment for Tyson, our Supreme Court held that “under the
facts of this case, Tyson owed no duty to the traveling public. The visual
obstruction was completely contained on its land and did not visit itself upon the
adjacent roadway.” Id. at 1041 (emphases added). In so holding, the Reece
Court adopted a bright line rule, providing that when the condition on the land
is contained on the land and does not create a physical intrusion that visits itself
on the adjacent roadway, the landowner does not owe a duty to travelers on the
roadway. See id. at 1034, 1040-41. The Reece holding was specifically confined
Court of Appeals of Indiana | Opinion 24A-CT-254 | September 27, 2024 Page 8 of 16 “to visual obstructions that do not come in contact with traveling motorists.” Id.
at 1041 (emphasis added).
[17] Unlike Reece, Oukbu did not allege the presence of tall grass or any other visual
obstruction on Amazon’s property. Rather, Oukbu pled facts that Amazon’s
duty to him arose from alleged defective lighting and confusing signage at the
entrances to the fulfillment center. Moreover, Reece involved a landowner’s
duty to passing motorists on an adjacent highway, and the Court specifically
rejected the argument that such a duty should be the same as that owed to a
business invitee. See id. at 1040 n.3. In short, Reece is not applicable in these
circumstances.
[18] We find the facts and circumstances in this case more akin to those in Lutheran
Hospital. In that case, the plaintiff—Blaser—was a hospital visitor who was
struck by a vehicle in the hospital’s parking lot driveway. The evidence
established that the parking lot was located across the street from the hospital
and when Blaser was struck, “she was walking up the driveway of the parking
lot.” 634 N.E.2d at 867.
[19] The hospital appealed a jury award in Blaser’s favor, contending that the trial
court erred when it found that the hospital had a duty to Blaser when she was
struck by a car in the parking lot’s driveway, “a right-of-way over which [the
hospital] allege[d] it did not control and only had a duty to maintain.” Id. at
868. A panel of this court rejected the hospital’s argument and determined that
it owed a duty to Blaser beyond the boundaries of its premises because it
Court of Appeals of Indiana | Opinion 24A-CT-254 | September 27, 2024 Page 9 of 16 created a dangerous condition on its property, that pedestrians gravitated to and
were not discouraged from using. See id. at 869-70.
[20] In arriving at this result, the Lutheran Hospital Court noted the following:
. There was a circular drive in front of the hospital building with a well-lit canopied entrance and a guard booth.
. The exit driveway to the parking lot across the street was directly across from the building’s entrance.
. The hospital encouraged pedestrians to use the exit lane of the parking lot by crossing the public roadway mid-block, rather than at the marked crosswalks.
. There was a guardhouse on the parking lot side of the road with an arrow pointing into it—though it was only meant to be an entrance for delivery trucks. The public had no way of knowing this until they were pulling into the exit driveway or were right alongside it.
[21] In examining these facts, the Lutheran Hospital Court determined that the
hospital’s funneling of pedestrian and vehicular traffic into the driveway of the
parking lot “created a dangerous condition that the hospital was either cognizant of or
should have reasonably foreseen.” Id. at 869 (emphasis added). Additionally:
By allowing pedestrians and automobiles to use the ‘exit’ driveway as an entrance to the parking lot without adequate safeguards or warning to either, Lutheran used its premises, the parking lot, in such a way to affect the risk of injury of its invitees off its premises, the ‘exit’ driveway. Because Lutheran knew the Court of Appeals of Indiana | Opinion 24A-CT-254 | September 27, 2024 Page 10 of 16 manner in which its invitees, both pedestrians and drivers, customarily used the driveway of the ‘exit’ in connection with its invitation, it is under a duty to correct the dangerous conditions and guard against foreseeable injuries.
Id. at 870. The Lutheran Hospital Court also pointed out that the
hospital knew of the danger because it had “assured the city engineer
that it would discourage people from using the canopy entrance doors
as an entry and exit to the hospital.” Id. Nothing had been done,
however, “towards this end or to direct pedestrians to the crosswalks.”
Id.
[22] Similar to the circumstances in Lutheran Hospital, Oukbu pled facts
demonstrating that Amazon knew or should have known that truck drivers
attempting to enter its premises were confused about where to enter to make
their deliveries. Indeed, the fulfillment center’s confusing layout, signage, and
lack of lighting often prompted arriving truck drivers to exit their trucks on the
county road in hopes of learning where and how to enter the facility.
Moreover, Oukbu’s allegations demonstrate that the incident was foreseeable to
Amazon because Gibson—the driver of the other vehicle—told investigating
police officers that truck drivers routinely stop where Dhillon was struck and
“get out” of their trucks because they were confused and did not know where to
enter the fulfillment center. Appellant’s Appendix Vol. II at 34. Additionally, an
Amazon employee told investigating officers that he sees lost truck drivers get
out of their trucks at that location “every day.” Id. at 35. Court of Appeals of Indiana | Opinion 24A-CT-254 | September 27, 2024 Page 11 of 16 [23] Given these circumstances, Oukbu sufficiently alleged in his complaint that
Amazon used its premises in a manner that harbored a dangerous condition off
its own premises, i.e., on the county road, that affected the risk of injury to
others. And in accordance with the reasoning advanced in Lutheran Hospital,
Oukbu properly alleged that Amazon had a duty to provide a “safe and suitable
means of ingress and egress,” including a “warning of or protection from
danger. . . .” Lutheran Hospital, 634 N.E.2d at 869. Put another way, Oukbu
pled facts that Amazon’s lack of signage and its failure to direct delivery drivers
where to enter the fulfillment center created confusion and a dangerous
condition.
[24] In addition to the rationale advanced in Lutheran Hospital, we also find
Restatement (Third) of Torts, § 54 (2012) (Section 54) instructive. Section 54
provides that
(a) The possessor of land has a duty of reasonable care for artificial conditions or conduct on the land that poses a risk of physical harm to persons or property not on the land.
(b) For natural conditions on land that pose a risk of physical harm to persons or property not on the land, the possessor of the land
(1) has a duty of reasonable care if the land is commercial; otherwise (2) has a duty of reasonable care only if the possessor knows of the risk or if the risk is obvious.
(c) Unless Subsection (b) applies, a possessor of land adjacent to a public walkway has no duty under this Chapter with regard to a risk posed by
Court of Appeals of Indiana | Opinion 24A-CT-254 | September 27, 2024 Page 12 of 16 the condition of the walkway to pedestrians or others if the land possessor did not create the risk.
(Emphasis added).
[25] While not specifically adopted in Indiana—yet accepted in other jurisdictions
—Section 54 pertains to the duty of reasonable care for conduct on one’s land
that creates risks to those not on the premises. For example, in Bradford v.
Universal Const. Co., Inc., 644 So.2d 864, 866 (Ala. 1994), it was held that a
landowner’s duty extends beyond the premises where the land abuts public
ways or sidewalks, and ordinary care requires that the owner not perform any
affirmative act that will create an unsafe condition in the public way fronting
his property. 3
[26] Here, Oukbu alleged that Amazon controlled the way that delivery drivers enter
the premises and that it placed an artificial hazard, i.e., the “no trucks” signage
on its premises. Oukbu also pled facts establishing that Amazon had direct
knowledge of the hazard it created and that it took no action to provide
3 See also Stephens v. Bashas’ Inc., 186 Ariz. 427, 430 (Ct. App. 1996) (holding that a delivery driver struck by a passing vehicle while waiting on an adjacent street to enter the owner’s premises to deliver goods was a business invitee to whom the owner owed a duty to maintain its premises in a reasonably safe condition, including the obligation to provide reasonably safe means of ingress and egress); Ollar v. Spakes, 601 S.W.2d 868, 870 (Ark. 1980) (when an owner or operator of a business learns or should have learned of a dangerous condition existing adjacent to his property and fails to attempt to correct the condition or warn the invitees of such danger, he is liable for negligence); Fleming v. Garnett, 646 A.2d 1308, 1313 (Conn. 1994) (owner of a commercial driveway adjacent to public road owed a duty to passing motorists because he realized or should have realized that tractor trailers exiting his property and entering the highway via neighboring driveway would temporarily block both lanes of traffic); Langen v. Rushton, 360 N.W.2d 270, 274 (Mich. Ct. App. 1984) (shopping center owner owed a duty in developing and maintaining the facility, including the parking lot and exits, to consider risks to motorists on adjacent highways); Boggs ex rel. Boggs v. Lay, 164 S.W.3d 4, 17 (Mo. App. E.D. 2005) (observing that a duty is imposed on a property owner that artificially creates, through negligence, or affirmative action, a condition on the public road that makes passage unsafe), trans. denied.
Court of Appeals of Indiana | Opinion 24A-CT-254 | September 27, 2024 Page 13 of 16 instructions for its approaching truck drivers. In short, Oukbu’s complaint was
sufficient to demonstrate that Amazon owed a duty of reasonable care to
Oukbu, and that Amazon’s actions—or inactions—created a condition that
made passage unsafe on the abutting public road.
[27] For these reasons, we conclude that the trial court erred in granting Amazon’s
motion for judgment on the pleadings. We therefore reverse and remand this
cause to the trial court for further proceedings consistent with this opinion.
[28] Reversed and remanded.
Bailey, J., concurs.
Mathias, J., concurs with separate opinion.
ATTORNEYS FOR APPELLANTS Brandon Yosha Bryan C. Tisch Alexander C. Trueblood Indianapolis, Indiana
ATTORNEYS FOR APPELLEES Edward M. O’Brien Edward A. DeVries Phillip G. Rizzo Cyrus G. Dutton, IV Louisville, Indiana
Court of Appeals of Indiana | Opinion 24A-CT-254 | September 27, 2024 Page 14 of 16 Barath S. Raman Edmund L. Abel J. Neal Bowling Indianapolis, Indiana
Daniel M. Witte Indianapolis, Indiana
Court of Appeals of Indiana | Opinion 24A-CT-254 | September 27, 2024 Page 15 of 16 Mathias, Judge, concurring.
[29] I write separately only to say that I would adopt the Restatement (Third) of
Torts § 54 (2012) to resolve the issues presented in this case, and I urge our
colleagues on the Supreme Court to do so.
Court of Appeals of Indiana | Opinion 24A-CT-254 | September 27, 2024 Page 16 of 16