Reham Al-Sinan v. Blackbird Farms Apartments, LLC and WH Long Rentals, Inc. (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 6, 2019
• Docket: 19A-CT-1236
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Nov 06 2019, 8:47 am the defense of res judicata, collateral CLERK estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEES Christopher G. Stevenson Andrew B. Miller D. Bruce Kehoe Starr Austen & Miller LLP Wilson Kehoe Winingham, LLC Logansport, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Reham Al-Sinan, November 6, 2019 Appellant-Plaintiff, Court of Appeals Case No. 19A-CT-1236 v. Appeal from the Tippecanoe Superior Court Blackbird Farms Apartments, The Honorable Randy J. Williams, LLC and WH Long Rentals, Judge Inc., Appellees-Defendants. Trial Court Cause No. 79D01-1604-CT-56

Bradford, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CT-1236 | November 6, 2019 Page 1 of 5 Case Summary [1] On March 3, 2015, Reham Al-Sinan was injured after she fell and hit her head

outside her apartment in the Blackbird Farms apartment complex. Reham filed

suit against Blackbird Farms and WH Long Rentals, Inc. (collectively,

“Blackbird”), alleging that (1) Blackbird breached the duty it owed her by

negligently failing to keep the public walkways and entry areas clear of

hazardous conditions and (2) she was injured as a result of Blackbird’s

negligence. Blackbird filed a motion for summary judgment, which was

granted by the trial court. Reham challenges the trial court’s order granting

Blackbird’s motion on appeal. Concluding that an issue of material fact

remains as to whether Blackbird breached its duty to Reham, we reverse the

trial court’s order granting Blackbird’s motion for summary judgment and

remand to the trial court for further proceedings.

Facts and Procedural History [2] Reham leased an apartment at Blackbird from August of 2013 to August of

2015. Between 7:15 and 7:30 on the morning of March 3, 2015, Reham slipped

and fell on the service ramp connected to the entry area of her apartment.

Reham called 911 and was transported to the hospital for treatment.

[3] On April 8, 2016, Reham filed suit against Blackbird, arguing that Blackbird

breached the duty it owed her by negligently failing to keep its sidewalks, public

Court of Appeals of Indiana | Memorandum Decision 19A-CT-1236 | November 6, 2019 Page 2 of 5 walkways, and entry areas clear of ice and snow. Reham further argued that

she was injured as a result of Blackbird’s negligence.

[4] On February 6, 2019, Blackbird filed a motion for summary judgment. Reham

filed a response in opposition to Blackbird’s motion after which Blackbird filed

a reply in support of its motion for summary judgment and a motion to strike

an expert report designated by Reham. The trial court conducted a hearing on

the pending motions on April 22, 2019, after which it issued orders granting

Blackbird’s motions for summary judgment and to strike.

Discussion and Decision [5] The purpose of summary judgment is to terminate litigation about which there can be no dispute and which may be determined as a matter of law. Our standard of review is the same as that of the trial court. Summary judgment is appropriate only where the evidence shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. For summary judgment purposes, a fact is “material” if it bears on ultimate resolution of relevant issues. In negligence cases, summary judgment is rarely appropriate because such cases are particularly fact sensitive and are governed by a standard of the objective reasonable person-one best applied by a jury after hearing all of the evidence. Nonetheless, summary judgment is appropriate when the undisputed material evidence negates one element of a negligence claim.

Harradon v. Schlamadinger, 913 N.E.2d 297, 300 (Ind. Ct. App. 2009) (internal

citations omitted).

Court of Appeals of Indiana | Memorandum Decision 19A-CT-1236 | November 6, 2019 Page 3 of 5 [6] In order for a lessee to recover from a landlord on a theory of negligence, the

lessee must show a duty on the part of the landlord and a breach of that duty.

Zimmerman v. Moore, 441 N.E.2d 690, 693 (Ind. Ct. App. 1982). In asserting

that Blackbird was negligent, Reham contends that it had a duty to keep the

property’s walkways in a safe condition; Blackbird failed to remove dangerous

conditions, i.e., ice; and she was injured as a result of Blackbird’s negligence.

For its part, Blackbird does not dispute that it owed Reham a duty but rather

claims that it did not breach the duty it owed to Reham.

[7] The mere allegation of a fall is insufficient to establish negligence. Taylor v.

Cmty. Hosps. of Ind., Inc., 949 N.E.2d 361, 364 (Ind. Ct. App. 2011). In this

case, however, Reham did not merely allege that she fell. Reham’s deposition

testimony, which was designated to the court, indicates that on the morning

Reham fell, “[i]t was pretty cold” and Reham observed that the steps by the

front entry area of her building “looked slippery and icy.” Appellant’s App.

Vol. II p. 56. Reham attempted to avoid the area that “looked slippery” by

walking on a nearby service ramp that “didn’t look slippery.” Appellant’s App.

Vol. II p. 61. However, despite her attempt to avoid the allegedly hazardous

area, she slipped and fell “as soon as [she] stepped on” the service ramp.

Appellant’s App. Vol. II p. 61. Reham indicated that although she did not see

ice on the service ramp where she fell, she assumed she slipped on ice.

[8] In support of its motion for summary judgment, Blackbird denies that the ramp

where Reham fell was icy and focuses on Reham’s statement that she did not

see ice on the ramp, arguing that her assumption that she fell on ice amounts to

Court of Appeals of Indiana | Memorandum Decision 19A-CT-1236 | November 6, 2019 Page 4 of 5 nothing more than inferential speculation. While we agree that inferential

speculation alone cannot establish negligence, see Wright Corp. v. Quack, 526

N.E.2d 216, 218 (Ind. Ct. App. 1988), Reham’s claim is not based on inferential

speculation alone. According to her deposition testimony, Reham observed icy

conditions in the immediate area and attempted to avoid what appeared to be

the most hazardous of these locations. Reham’s deposition testimony alone is

sufficient to create an issue of material fact as to whether Blackbird breached its

duty to keep its walkways clear of hazardous conditions. As such, the trial

court erred by granting summary judgment in favor of Blackbird. 1

[9] The judgment of the trial court is reversed and the matter is remanded for

further proceedings.

Vaidik, C.J., and Riley, J., concur.

1 Given that we conclude that Reham’s designated deposition testimony created a genuine issue of material fact as to whether Blackbird breached its duty to Reham, we need not discuss the other evidence designated by the parties or consider whether the trial court abused its discretion in excluding Reham’s proffered expert report from the designated evidence.

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