FILED Jun 26 2020, 9:12 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Richard K. Shoultz Tara M. Worthley Neal Bowling Steven L. Langer Lewis Wagner, LLP Valparaiso, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Pioneer Retail, LLC, June 26, 2020 d/b/a Wiseway Food, Court of Appeals Case No. Appellant-Defendant, 20A-CT-83 Appeal from the Lake Superior v. Court The Honorable Calvin D. Jane Jones, Hawkins, Judge Appellee-Plaintiff Trial Court Cause No. 45D02-1507-CT-125
Baker, Judge.
Court of Appeals of Indiana | Opinion 20A-CT-83 | June 26, 2020 Page 1 of 7 [1] On February 15, 2014, Jane Jones slipped and fell on a sidewalk outside of the
Wiseway Food grocery store, sustaining significant injuries. Jones then filed
suit against multiple parties, among them Pioneer Retail, LLC (Pioneer),1 for
damages. Pioneer filed a motion for summary judgment, arguing that there was
no genuine issue of material fact regarding which party owed a duty of care to
Jones and, consequently, that it was entitled to judgment as a matter of law.
The trial court denied Pioneer’s motion, the matter proceeded to trial, and the
jury ultimately returned a judgment in Jones’s favor and held that Pioneer was
25% at fault for her injuries. Now, Pioneer appeals the trial court’s denial of its
motion for summary judgment,2 contending that the trial court erred. Finding
no error, we affirm.
Facts [2] Multiple actors factor into the backdrop of this case. Gateway Arthur, Inc.
(Gateway), owns the property at 10839 Randolph Street in Crown Point, where
the Wiseway Food grocery store is located. Emmes Realty Services, LLC
(Emmes), is the management company for the property, and it contracted with
DLC Landscape and Snow Removal, Inc. (DLC), to regularly clear snow, ice,
1 Pioneer owns the grocery store known as “Wiseway Food.” For purposes of this appeal and because there are so many entities involved in this litigation, Pioneer and Wiseway are one and the same. 2 See Keith v. Mendus, 661 N.E.2d 26, 35 (Ind. Ct. App. 1996) (holding that “the denial of a motion for summary judgment is reviewable on appeal following a final judgment entered after trial on the merits[]”).
Court of Appeals of Indiana | Opinion 20A-CT-83 | June 26, 2020 Page 2 of 7 and other debris from the property. Gateway leased the property to tenant
Pioneer, which owns and operates the Wiseway Food grocery store.
[3] On February 15, 2014, Jones was walking into Wiseway Food through its main
entrance when she slipped and fell on the sidewalk immediately outside the
store. It is undisputed that sometime before Jones parked and walked into the
store, it had been snowing and that some snow and/or ice had accumulated on
the sidewalk where Jones fell. After sustaining serious injuries from her fall, on
May 6, 2015, Jones filed a complaint against Wiseway Food, which she later
amended to include Pioneer. In two separate answers filed on June 15, 2015,
and February 22, 2016, Pioneer claimed that it both was and was not the tenant
of that property. Pursuant to a stipulation of the parties, Wiseway Food was
dismissed and subsumed into Pioneer; Jones then subsequently added
Gateway, Emmes, and DLC as defendants.
[4] On June 27, 2019, Pioneer filed a motion for summary judgment, arguing that
“it was Gateway, and not Pioneer that owed a duty to [Jones] to remove ice
from the Common Area where [Jones] fell.” Appellant’s App. Vol. II p. 52
(emphases omitted). In support of its motion, Pioneer designated evidence in
the form of (1) Jones’s amended complaint; (2) Pioneer’s answer to the
amended complaint; (3) the deposition transcript of Jones; and (4) the
deposition transcript of Emmes property manager Amy Giroud. Pioneer’s
proffered evidence attempted to show that Gateway was landlord of the
property and the sidewalk was a common area that Gateway was solely
responsible for maintaining. This evidence, Pioneer contends, demonstrates
Court of Appeals of Indiana | Opinion 20A-CT-83 | June 26, 2020 Page 3 of 7 that there is no genuine issue of material fact regarding which entity—
Gateway—has exclusive ownership and control over the sidewalk in front of
Wiseway Food. Therefore, Pioneer argues that it owed no duty of care to Jones
as an invitee and, consequently, that it is entitled to judgment as a matter of
law.
[5] In her July 29, 2019, response to Pioneer’s motion for summary judgment and
in her counter-motion for summary judgment, Jones designated evidence in the
form of (1) her amended complaint; (2) Pioneer’s affirmative defenses; (3) the
lease between Gateway and Pioneer; and (4) the deposition transcripts from
Wiseway corporate designee Brett Gargano, assistant store managers Sam
Liubakka, Tammy Bobey, and Chris Brown, and Jones herself. According to
Jones:
Wiseway/Pioneer’s claim that it had no duty to its customers is unreasonable and baseless upon prevailing and clearly established Indiana legal precedents, [Pioneer’s] own conduct and it’s [sic] own witness’s testimony which clearly establish its recognition of its duty to its customers separate and apart from its contract with Gateway. It defies logic that [Pioneer] would make the argument that it had no duty to its customers in the face of Brett Garganos’ [sic] clear and unequivocal testimony to the contrary.
Appellant’s App. Vol. III p. 102.
[6] On September 26, 2019, the trial court held oral argument on all the pending
summary judgment motions; the next day, on September 27, the trial court
denied both Pioneer’s original motion and Jones’s counter-motion for summary
judgment. Following certification, this Court denied Pioneer’s motion for
Court of Appeals of Indiana | Opinion 20A-CT-83 | June 26, 2020 Page 4 of 7 interlocutory appeal on November 8, 2019. The matter then proceeded to a
December 11, 2019, trial, at the conclusion of which the jury entered judgment
in favor of Jones and awarded her $1,437,187.50 in damages. The jury found
Pioneer to be 25% at fault and Gateway, Emmes, and DLC to collectively be
75% at fault for Jones’s injuries. Pioneer was ultimately ordered to pay
$479,062.50. Pioneer now appeals.
Discussion and Decision [7] Pioneer’s sole argument on appeal is that the trial court erred by denying its
motion for summary judgment. Specifically, Pioneer contends that there was no
genuine issue of material fact regarding which entity owed a duty of care to
Jones. Pioneer argues that because it “exercised zero control of the area where
[] Jones fell, as a matter of law, it owed her no duty,” appellant’s br. p. 12, and
that summary judgment should have been awarded in its favor.
[8] Our standard of a review for a motion for summary judgment is well settled:
[W]hen we review a grant or denial of a motion for summary judgment, our standard of review is the same as it is for the trial court. The moving party must show there are no genuine issues of material fact and it is entitled to judgment as a matter of law. If the moving party carries its burden, then the non-moving party must present evidence establishing the existence of a genuine issue of material fact. In deciding whether summary judgment is proper, we consider only the evidence the parties specifically designated to the trial court.
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FILED Jun 26 2020, 9:12 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Richard K. Shoultz Tara M. Worthley Neal Bowling Steven L. Langer Lewis Wagner, LLP Valparaiso, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Pioneer Retail, LLC, June 26, 2020 d/b/a Wiseway Food, Court of Appeals Case No. Appellant-Defendant, 20A-CT-83 Appeal from the Lake Superior v. Court The Honorable Calvin D. Jane Jones, Hawkins, Judge Appellee-Plaintiff Trial Court Cause No. 45D02-1507-CT-125
Baker, Judge.
Court of Appeals of Indiana | Opinion 20A-CT-83 | June 26, 2020 Page 1 of 7 [1] On February 15, 2014, Jane Jones slipped and fell on a sidewalk outside of the
Wiseway Food grocery store, sustaining significant injuries. Jones then filed
suit against multiple parties, among them Pioneer Retail, LLC (Pioneer),1 for
damages. Pioneer filed a motion for summary judgment, arguing that there was
no genuine issue of material fact regarding which party owed a duty of care to
Jones and, consequently, that it was entitled to judgment as a matter of law.
The trial court denied Pioneer’s motion, the matter proceeded to trial, and the
jury ultimately returned a judgment in Jones’s favor and held that Pioneer was
25% at fault for her injuries. Now, Pioneer appeals the trial court’s denial of its
motion for summary judgment,2 contending that the trial court erred. Finding
no error, we affirm.
Facts [2] Multiple actors factor into the backdrop of this case. Gateway Arthur, Inc.
(Gateway), owns the property at 10839 Randolph Street in Crown Point, where
the Wiseway Food grocery store is located. Emmes Realty Services, LLC
(Emmes), is the management company for the property, and it contracted with
DLC Landscape and Snow Removal, Inc. (DLC), to regularly clear snow, ice,
1 Pioneer owns the grocery store known as “Wiseway Food.” For purposes of this appeal and because there are so many entities involved in this litigation, Pioneer and Wiseway are one and the same. 2 See Keith v. Mendus, 661 N.E.2d 26, 35 (Ind. Ct. App. 1996) (holding that “the denial of a motion for summary judgment is reviewable on appeal following a final judgment entered after trial on the merits[]”).
Court of Appeals of Indiana | Opinion 20A-CT-83 | June 26, 2020 Page 2 of 7 and other debris from the property. Gateway leased the property to tenant
Pioneer, which owns and operates the Wiseway Food grocery store.
[3] On February 15, 2014, Jones was walking into Wiseway Food through its main
entrance when she slipped and fell on the sidewalk immediately outside the
store. It is undisputed that sometime before Jones parked and walked into the
store, it had been snowing and that some snow and/or ice had accumulated on
the sidewalk where Jones fell. After sustaining serious injuries from her fall, on
May 6, 2015, Jones filed a complaint against Wiseway Food, which she later
amended to include Pioneer. In two separate answers filed on June 15, 2015,
and February 22, 2016, Pioneer claimed that it both was and was not the tenant
of that property. Pursuant to a stipulation of the parties, Wiseway Food was
dismissed and subsumed into Pioneer; Jones then subsequently added
Gateway, Emmes, and DLC as defendants.
[4] On June 27, 2019, Pioneer filed a motion for summary judgment, arguing that
“it was Gateway, and not Pioneer that owed a duty to [Jones] to remove ice
from the Common Area where [Jones] fell.” Appellant’s App. Vol. II p. 52
(emphases omitted). In support of its motion, Pioneer designated evidence in
the form of (1) Jones’s amended complaint; (2) Pioneer’s answer to the
amended complaint; (3) the deposition transcript of Jones; and (4) the
deposition transcript of Emmes property manager Amy Giroud. Pioneer’s
proffered evidence attempted to show that Gateway was landlord of the
property and the sidewalk was a common area that Gateway was solely
responsible for maintaining. This evidence, Pioneer contends, demonstrates
Court of Appeals of Indiana | Opinion 20A-CT-83 | June 26, 2020 Page 3 of 7 that there is no genuine issue of material fact regarding which entity—
Gateway—has exclusive ownership and control over the sidewalk in front of
Wiseway Food. Therefore, Pioneer argues that it owed no duty of care to Jones
as an invitee and, consequently, that it is entitled to judgment as a matter of
law.
[5] In her July 29, 2019, response to Pioneer’s motion for summary judgment and
in her counter-motion for summary judgment, Jones designated evidence in the
form of (1) her amended complaint; (2) Pioneer’s affirmative defenses; (3) the
lease between Gateway and Pioneer; and (4) the deposition transcripts from
Wiseway corporate designee Brett Gargano, assistant store managers Sam
Liubakka, Tammy Bobey, and Chris Brown, and Jones herself. According to
Jones:
Wiseway/Pioneer’s claim that it had no duty to its customers is unreasonable and baseless upon prevailing and clearly established Indiana legal precedents, [Pioneer’s] own conduct and it’s [sic] own witness’s testimony which clearly establish its recognition of its duty to its customers separate and apart from its contract with Gateway. It defies logic that [Pioneer] would make the argument that it had no duty to its customers in the face of Brett Garganos’ [sic] clear and unequivocal testimony to the contrary.
Appellant’s App. Vol. III p. 102.
[6] On September 26, 2019, the trial court held oral argument on all the pending
summary judgment motions; the next day, on September 27, the trial court
denied both Pioneer’s original motion and Jones’s counter-motion for summary
judgment. Following certification, this Court denied Pioneer’s motion for
Court of Appeals of Indiana | Opinion 20A-CT-83 | June 26, 2020 Page 4 of 7 interlocutory appeal on November 8, 2019. The matter then proceeded to a
December 11, 2019, trial, at the conclusion of which the jury entered judgment
in favor of Jones and awarded her $1,437,187.50 in damages. The jury found
Pioneer to be 25% at fault and Gateway, Emmes, and DLC to collectively be
75% at fault for Jones’s injuries. Pioneer was ultimately ordered to pay
$479,062.50. Pioneer now appeals.
Discussion and Decision [7] Pioneer’s sole argument on appeal is that the trial court erred by denying its
motion for summary judgment. Specifically, Pioneer contends that there was no
genuine issue of material fact regarding which entity owed a duty of care to
Jones. Pioneer argues that because it “exercised zero control of the area where
[] Jones fell, as a matter of law, it owed her no duty,” appellant’s br. p. 12, and
that summary judgment should have been awarded in its favor.
[8] Our standard of a review for a motion for summary judgment is well settled:
[W]hen we review a grant or denial of a motion for summary judgment, our standard of review is the same as it is for the trial court. The moving party must show there are no genuine issues of material fact and it is entitled to judgment as a matter of law. If the moving party carries its burden, then the non-moving party must present evidence establishing the existence of a genuine issue of material fact. In deciding whether summary judgment is proper, we consider only the evidence the parties specifically designated to the trial court. We construe all factual inferences in favor of the non-moving party and resolve all doubts regarding the existence of a material issue against the moving party.
Court of Appeals of Indiana | Opinion 20A-CT-83 | June 26, 2020 Page 5 of 7 Knighten v. E. Chi. Hous. Auth., 45 N.E.3d 788, 791 (Ind. 2015) (internal
citations omitted).
[9] To recover damages for negligence, a plaintiff must prove that (1) the defendant
owed a duty to the plaintiff; (2) the defendant breached that duty; and (3) the
plaintiff’s injury was proximately caused by defendant’s breach. Robertson v.
B.O., 977 N.E.2d 341, 344 (Ind. 2012). In its brief, Pioneer contests only
whether it owed a duty of care to Jones. According to the evidence proffered by
Pioneer, Gateway, as landlord of the property, was the exclusive owner of the
sidewalk and was ultimately responsible for keeping it clear of accumulating
snow and ice. Gateway’s hiring of DLC to plow the sidewalk, Pioneer
contends, further supports its argument that Gateway, and not Pioneer, was
obligated to keep customers like Jones safe.
[10] However, Indiana caselaw directly contradicts Pioneer’s central argument as to
why it is entitled to judgment as a matter of law. It is well established that
Pioneer, as a business entity, has a duty of care to its invitees. See Lutheran Hosp.
of Ind., Inc. v. Blaser, 634 N.E.2d 864, 868 (Ind. Ct. App. 1994) (holding that
“[t]he invitor has a duty to exercise reasonable care to discover defects or
dangerous conditions on the premises, and he will be charged with knowledge
of, and held liable for injuries which result from, any dangerous condition
which he could have discovered in the exercise of reasonable care[]”). “The
duty of an invitor to exercise reasonable care for the safety of his invitees is an
active and continuing one.” Get-N-Go, Inc. v. Markins, 550 N.E.2d 748, 751 (Ind.
1990). Moreover, “a party cannot contract out his duty to exercise reasonable
Court of Appeals of Indiana | Opinion 20A-CT-83 | June 26, 2020 Page 6 of 7 care with respect to third parties.” Morris v. McDonald’s Corp., 650 N.E.2d 1219,
1222-23 (Ind. Ct. App. 1995).
[11] Therefore, as a matter of law, Pioneer owed some duty of care to Jones as an
invitee. And the fact that Gateway is the landlord of the property and
contracted with DLC to clear ice and snow does not summarily absolve Pioneer
of liability regarding its duty of care to its invitees. Notwithstanding the lease,
the surveillance footage, or the actions and testimony of Pioneer’s or DLC’s
individual employees, Indiana law leads us to but one conclusion: that the trial
court did not err when it denied Pioneer’s motion for summary judgment.
[12] The judgment of the trial court is affirmed.
Bradford, C.J., and Pyle, J., concur.
Court of Appeals of Indiana | Opinion 20A-CT-83 | June 26, 2020 Page 7 of 7