Pier 1 Imports (U.S.), Inc. v. Acadia Merrillville Realty, L.P. and Boyd Construction Company, Inc.

991 N.E.2d 965, 2013 WL 3366747, 2013 Ind. App. LEXIS 321
CourtIndiana Court of Appeals
DecidedJuly 3, 2013
Docket45A03-1207-CT-318
StatusPublished
Cited by2 cases

This text of 991 N.E.2d 965 (Pier 1 Imports (U.S.), Inc. v. Acadia Merrillville Realty, L.P. and Boyd Construction Company, Inc.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pier 1 Imports (U.S.), Inc. v. Acadia Merrillville Realty, L.P. and Boyd Construction Company, Inc., 991 N.E.2d 965, 2013 WL 3366747, 2013 Ind. App. LEXIS 321 (Ind. Ct. App. 2013).

Opinions

OPINION

BRADFORD, Judge.

Plaintiff Carolyn Harris slipped and fell on an ice-covered sidewalk in front of a retail store operated by Appellant-Defendant Pier 1 Imports, Inc. (“Pier 1”). Pier 1 leases its retail space from Appellee-Defendant Acadia Merrillville Realty, L.P. (“Acadia”), and their lease agreement requires that Acadia keep the sidewalk free from snow and ice. At the time of the incident, Acadia maintained a contract with Appellee-Defendant Boyd Construction Company, Inc. (“Boyd”), providing that Boyd would keep the sidewalk clear of snow and ice. Mrs. Harris brought a negligence claim against Pier 1, Acadia, and Boyd for injuries she suffered as a result of her slip-and-fall. All three defendants filed motions for summary judgment. The trial court found that Acadia and Boyd did not breach their respective duties of care and granted summary judgment in their favor, while denying Pier l’s motion for the same. As the sole remaining defendant, Pier 1 filed a motion to correct error, arguing that summary judgment in favor of Acadia and Boyd was inappropriate and asserting prejudice from the fact that Pier 1 can no longer allocate fault to Acadia and Boyd as nonparties.

Pier 1 appeals from the trial court’s denial of its motion to correct error, again challenging the grant of summary judgment in favor of Acadia and Boyd. Acadia and Boyd claim that Pier 1 lacks standing to challenge the trial court’s summary judgment awards because Pier 1 failed to preserve the issue of prejudice by opposing Acadia’s and Boyd’s motions or advising the trial court of an intent to allocate fault to Acadia and Boyd as nonparties. Because Pier 1 did not have an opportunity to object to Acadia’s and Boyd’s dismissal prior to the court’s ruling on their motions for summary judgment, we conclude that Pier 1 has standing to appeal. On the merits, we conclude that summary judgment in favor of Acadia and Boyd was inappropriate: Whether Acadia discharged its duty of care merely by contracting with Boyd is a question for the jury to decide, and, because there is evidence that additional salting was necessary after Boyd salted the sidewalk, a jury could reasonably infer that Boyd failed to exercise reasonable care in performing its snow and ice removal services. The judgment of the trial court is reversed and remanded for further proceedings.

FACTS AND PROCEDURAL HISTORY

On February 4, 2009, at a shopping center in Merrillville, Mrs. Harris slipped and fell on an ice-covered sidewalk in front of a retail store operated by Pier 1. Pier 1 leases its retail space from Acadia, who [967]*967owns the shopping center and the sidewalk at issue. Their lease agreement requires that Acadia keep the sidewalk free from snow and ice. At the time of the incident, Acadia maintained a snow removal contract with Boyd, providing that Boyd would keep the shopping center’s sidewalks clear of snow and ice.

Mrs. Harris and her husband, Jimmie Harris, filed suit against Acadia and Pier 1 on March 30, 2009, and later amended their complaint to add Boyd as a defendant. Mrs. Harris claims the three defendants were negligent in their maintenance of the sidewalk, causing her to suffer serious injury from her slip-and-fall. As a result of his wife’s alleged injury, Mr. Harris asserts a derivative loss of consortium claim against the defendants. Acadia, Boyd, and Pier 1 filed separate motions for summary judgment, on which the trial court heard oral argument on January 12, 2012. At this hearing, the defendants commonly argued that, because the undisputed facts show that Mrs. Harris was aware that the sidewalk was icy and traversed it anyway, the defendants did not breach any duty of care and are entitled to judgment as a matter of law. Each co-defendant also indicated that summary judgment was appropriate for the other two.

On April 23, 2012, the trial court granted summary judgment in favor of Acadia and Boyd and denied Pier l’s motion for the same. In its order, the court issued the following findings and conclusions thereon:

[T]he undisputed evidence establishes that Acadia, the landowner, contracted with Boyd to remove snow and ice from the business premises. Moreover, the designated evidence establishes that on the day before the incident Boyd spent 25 ⅜ man-hours providing snow and ice removal services and on the day of the incident, Boyd’s employees returned to the premises at 4:30 in the morning and provided an additional 19 ½ man-hours of snow and ice removal services, including salting. Accordingly, this Court finds that there is no evidence from which it can be reasonably inferred that either Acadia or Boyd failed to use reasonable care in discharging its duty to Harris. Their respective motions for summary judgment should be granted.

Appellant’s App p. 25.

With regard to Pier 1 Imports, however, the evidence establishes that there was an employee in front of the store continuing to salt the sidewalk. A reasonable inference to be drawn from this evidence is that the employee of Pier 1 determined that additional salting of the sidewalk in front of the Pier 1 store was necessary. While she was salting, Harris approached and slipped and fell in front of the store. Pier 1 owed Harris, its business invitee[,3 a duty to use reasonable care for her safety and a reasonable inference to be made from the evidence is that Pier 1 breached that duty.
Moreover, the Pier 1 employee provided no warning to Harris and, in fact, appears to have had her back to Harris as Harris approached. With the knowledge that the sidewalk in front of the store was, in fact, ice-covered[,] requiring additional salting, it is reasonable to infer that the actions of the Pier 1 employee in failing to provide a warning to Harris of the slippery conditions in front of the store was a breach of the duty of care owed by Pier 1 to its business invitee, Harris. Pier l’s motion for summary judgment should be denied.

Appellant’s App. pp. 25-26.

On May 22, 2012, Pier 1 filed a motion to correct error, arguing that summary judgment in favor of Acadia and Boyd was inappropriate and asserting that their dismissal as co-defendants precludes Pier 1 [968]*968from allocating fault to them as nonparties. The trial court denied Pier l’s motion to correct error on June 19, 2012.

DISCUSSION AND DECISION

Pier 1 argues that the trial court erred in granting summary judgment in favor of Acadia and Boyd. Although the final order entered by the trial court was its denial of Pier l’s motion to correct error, that motion was based on the trial court’s grant of Acadia’s and Boyd’s summary judgment motions; therefore, we review this appeal using the standard applicable to summary judgment rulings. See Hair v. Schellenberger, 966 N.E.2d 693, 697 n. 3 (Ind.Ct. App.2012), trans. denied. We note for clarity that Pier 1 does not challenge the trial court’s denial of its own summary judgment motion, nor has it sought to name Acadia and Boyd as nonparty defendants. We also note that the Harrises are not participating in this appeal.

I. Standing

As a threshold issue, Acadia and Boyd claim that Pier 1 lacks standing to challenge the trial court’s grant of summary judgment in their favor.

The issue of standing focuses on whether the complaining party is the proper person to invoke the court’s power. Shourek v. Stirling,

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Bluebook (online)
991 N.E.2d 965, 2013 WL 3366747, 2013 Ind. App. LEXIS 321, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pier-1-imports-us-inc-v-acadia-merrillville-realty-lp-and-boyd-indctapp-2013.