Richard Dolsen, Jr. v. Veoride Inc

• Court: Indiana Court of Appeals
• Decided: October 23, 2023
• Docket: 23A-CT-00945
• Status: Published

Opinion

FILED Oct 23 2023, 8:45 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Thomas A. Manges Lucy R. Dollens Manges Law Firm Quarles & Brady LLP Fort Wayne, Indiana Indianapolis, Indiana

Kathleen K. Curtis Nilan Johnson Lewis Minneapolis, MN

IN THE COURT OF APPEALS OF INDIANA

Richard Dolsen, Jr., October 23, 2023 Appellant-Plaintiff, Court of Appeals Case No. 23A-CT-945 v. Appeal from the Allen Superior Court VeoRide, Inc., The Honorable Jennifer L. Appellee-Defendant DeGroote, Judge Trial Court Cause No. 02D03-2203-CT-103

Opinion by Judge Crone Judges Brown and Felix concur.

Crone, Judge.

Court of Appeals of Indiana | Opinion 23A-CT-945 | October 23, 2023 Page 1 of 11 Case Summary [1] Fort Wayne Fire Department Captain Richard Dolsen, Jr., was injured while

responding to a fire in a building leased by VeoRide, Inc. Dolsen sued VeoRide

for negligence. VeoRide moved for summary judgment on the basis that

Dolsen’s claims were barred by Indiana’s firefighter’s rule, 1 and the trial court

granted that motion. On appeal, Dolsen argues that the trial court erred. We

agree, so we reverse and remand for further proceedings.

Facts and Procedural History [2] VeoRide “is a company that rents electric scooters and electric bicycles that are

powered by lithium batteries.” Appellant’s App. Vol. 2 at 59. In 2019, VeoRide

expressed interest in leasing a building in Fort Wayne from Sweet Real Estate–

City Center, LLC (Sweet). At that time, the building had no electricity or light

fixtures, and the only window was on the second floor, which was “sectioned

off” from the ground floor. Id. at 152. During a walk-through of the building,

VeoRide regional general manager Benjamin Thomas and Sweet real estate

broker Tiffany Fries had to use “big flashlights” to be able to see. Id. at 150.

Thomas asked Sweet to install electricity, light fixtures, and “outlets to charge

batteries[,]” which was done after VeoRide and Sweet entered into a

commercial lease agreement in August 2019. Id. at 153. VeoRide used the

1 The rule has previously been referred to as the “fireman’s rule.”

Court of Appeals of Indiana | Opinion 23A-CT-945 | October 23, 2023 Page 2 of 11 building “to store scooters, scooter parts, batteries, battery racks, and battery

recharging equipment.” Id. at 61.

[3] On June 11, 2020, one of the batteries ignited and started a fire in the building.

No VeoRide employees were on the premises at that time. Around 6:00 p.m.,

Fries received a call from her company’s security chief about the fire, and she

started driving toward the building. Fries called the fire department and

VeoRide manager Eric Xayarath, who had already been notified about the fire 2

and also was en route to the building. Xayarath called Thomas and said that

“there was a fire” and “the firefighters had been called[.]” Id. at 185. Xayarath

said “that he would keep [Thomas] posted on kind of next steps what was going

to go on.” Id.

[4] Around 6:38 p.m., Dolsen’s unit was dispatched to the fire. Dolsen had never

been inside the building. He was “equipped with a radio, so any warning sent

by [Sweet] or [VeoRide] could quickly and easily have been conveyed to

[him].” Id. at 112. On “many occasions in [his] career, [he had] responded to

other fires where an owner or tenant at a commercial building [had] warned

[fire department personnel] about potential dangers inside, including holes in a

floor.” Id.

2 Fries’s deposition suggests that the fire department notified Xayarath about the fire. Appellant’s App. Vol. 2 at 171.

Court of Appeals of Indiana | Opinion 23A-CT-945 | October 23, 2023 Page 3 of 11 [5] Dolsen entered the building through a door, “at which point [he] could not see

due to lack of light and smoke.” Id. at 112. 3 He “moved around the perimeter of

the inside of the building … to look for a ventilation opening and electrical

breaker box by touching and pressing the inside wall to guide [him].” Id. Just

after he passed a closed door “at the southeast corner of the building, [he]

extended [his] left arm to press the wall, as [he] had been doing, but contacted

nothing but air, and fell through an opening in the wall down into what [he]

later realized was a stairwell.” Id. The wall was composed of bare wooden

studs, with a gap left by a missing stud. Dolsen “could not see the opening in

the wall due to the lack of light and the presence of smoke.” Id. Dolsen “fell to

the bottom of the stairwell” and was injured. Id. Fries and Xayarath arrived at

the building after the fire was extinguished.

[6] In March 2022, Dolsen filed a complaint against VeoRide and Sweet, which

alleged in pertinent part that the fire was caused by “mishandling of the

batteries[,]” that he should have been warned about the opening in the wall,

and that “[t]he fault of the Defendants was responsible for causing damages to”

him. Id. at 34. VeoRide filed a motion for summary judgment asserting that

Dolsen’s claims were barred by Indiana’s firefighter’s rule. In support of its

motion, VeoRide designated evidence establishing that its “employees walked

around and in the area of the absent stud … on a day-to-day basis without any

3 VeoRide asserts that “it was only dark in the Building because the lights were inoperable as a result of the fire.” Appellee’s Br. at 9 (citing Appellant’s App. Vol. 2 at 127, 153, 168). The cited pages do not support this assertion. The record before us is silent regarding the actual cause of the power outage.

Court of Appeals of Indiana | Opinion 23A-CT-945 | October 23, 2023 Page 4 of 11 injuries occurring[,]” that no employee had “ever fallen through the location of

the absent stud[,]” and that the wall “was in the same condition on the day of

the fire as it was on the day VeoRide began occupying the Building on

September 1, 2019.” Id. at 41. Sweet filed a motion asserting that it was entitled

to summary judgment because “it had given full possession and control of the

Building to VeoRide.” Appealed Order at 2. In March 2023, the trial court

issued an order granting both summary judgment motions, finding that

Dolsen’s claims were “conclusively barred” by Indiana’s firefighter’s rule. Id. at

18. Dolsen now appeals that order only as to VeoRide.

Discussion and Decision [7] In reviewing a summary judgment ruling, “we apply the same test as the trial

court: summary judgment is appropriate only if the designated evidence shows

there is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law.” Erie Ins. Exch. v. Myron Corp., 212 N.E.3d 174,

178 (Ind. Ct. App. 2023) (citing, inter alia, Ind. Trial Rule 56(C)). “The moving

party bears the initial burden of showing the absence of any genuine issue of

material fact as to a determinative issue.” Id. “Our review is limited to those

facts designated to the trial court, and we construe all facts and reasonable

inferences drawn from those facts in favor of the non-moving party.” Id. (citing,

inter alia, Ind. Trial Rule 56(H)). Although “federal practice permits the

moving party to merely show that the party carrying the burden of proof lacks

evidence on a necessary element, we impose a more onerous burden: to

affirmatively ‘negate an opponent’s claim.’” Hughley v. State, 15 N.E.3d 1000,

Court of Appeals of Indiana | Opinion 23A-CT-945 | October 23, 2023 Page 5 of 11 1003 (Ind. 2014) (quoting Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644

N.E.2d 118, 123 (Ind. 1994)). “Because we review a summary judgment ruling

de novo, a trial court’s findings and conclusions offer insight into the rationale

for the court’s judgment and facilitate appellate review but are not binding on

this court.” Erie Ins., 212 N.E.3d at 178 (italics omitted).

[8] Dolsen’s claims against VeoRide sound in negligence. “To prevail on a claim of

negligence, a plaintiff must demonstrate three elements: (1) a duty owed by the

defendant to the plaintiff; (2) a breach of that duty; and (3) compensable injuries

proximately caused by the breach.” Shiel Sexton Co. v. Towe, 154 N.E.3d 827,

832 (Ind. Ct. App. 2020). Whether a duty exists is usually a question of law, but

sometimes the existence of a duty depends upon underlying facts that require

resolution by the trier of fact. Yates v. Johnson Cnty. Bd. of Comm’rs, 888 N.E.2d

842, 847 (Ind. Ct. App. 2008). “Summary judgment is rarely appropriate in

negligence actions because negligence cases are particularly fact sensitive and

are governed by a standard of the objective reasonable person.” Severance v. New

Castle Cmty. Sch. Corp., 75 N.E.3d 541, 546 (Ind. Ct. App. 2017), trans. denied.

“This standard is best applied by a jury after hearing all of the evidence.” Id.

“To prevail on a motion for summary judgment in a negligence action, the

defendant must demonstrate that the undisputed material facts negate at least

one of the elements essential to plaintiff’s claim or that the claim is barred by an

affirmative defense.” Id.

[9] In its relatively recent restatement of Indiana’s firefighter’s rule, which was

originally established in 1893, the Indiana Supreme Court explained that the

Court of Appeals of Indiana | Opinion 23A-CT-945 | October 23, 2023 Page 6 of 11 rule “allows no claim by a professional emergency responder for the negligence

that creates the emergency to which he or she responds.” Babes Showclub, Jaba,

Inc. v. Lair, 918 N.E.2d 308, 313-14 (Ind. 2009). Thus, Dolsen has no claim for

VeoRide’s allegedly negligent handling of the scooter batteries, which allegedly

started the fire to which he responded.

[10] That said, pursuant to Babes Showclub, an “emergency responder remains free to

sue for damages if an injury is caused by negligent or intentional tortious

conduct separate and apart from the conduct that contributed to the

emergency.” Id. at 314. “The negligent conduct need not occur after the officer

arrives on the scene, but must be separate from and independent of the

negligence that caused the situation necessitating the officer’s presence. Such a

claim will be subject to the provisions of Indiana’s Comparative Fault Act.” Id.

[11] Here, Dolsen alleged that VeoRide was also negligent in failing to warn him of

the danger posed by the gap in the wall next to the stairwell, which he was

unable to see “due to the lack of light and the presence of smoke.” Appellant’s

App. Vol. 2 at 112. Clearly, this allegedly negligent conduct is separate from

and independent of the negligence that caused the situation necessitating

Dolsen’s presence in VeoRide’s building. “Under Indiana law, the status of a

person when he or she is injured on the premises of another determines the duty

owed to that person by the owner of the property.” Henderson v. Reid Hosp.

Healthcare Servs., 17 N.E.3d 311, 315 (Ind. Ct. App. 2014), trans. denied (2015).

A firefighter is a licensee and therefore “is owed only ‘the duty to refrain from

willfully or wantonly injuring him or acting in a manner to increase his peril’

Court of Appeals of Indiana | Opinion 23A-CT-945 | October 23, 2023 Page 7 of 11 and ‘to warn the licensee of any latent [non-obvious] danger’ of which the

landowner [or possessor] is aware.” Babes Showclub, 918 N.E.2d at 310 & n.2

(quoting Burrell v. Meads, 569 N.E.2d 637, 639 (Ind. 1991)).

[12] In its order, the trial court noted that

VeoRide employees routinely walked by the Wall and Stairwell without incurring any injuries. For this reason, it is likely that Defendants did not warn Dolsen of the Wall and Stairway because Defendants simply did not anticipate them presenting any danger to Dolsen; in a normal situation they likely would not have presented any danger to Dolsen.

Appealed Order at 17. But the designated evidence indicates that when Dolsen

responded to the fire, the building was dark and filled with smoke, and thus the

gap in the wall and the stairwell, which VeoRide’s employees were aware of,

were not obvious to him.

[13] In this situation, we find instructive Section 342 of the Restatement (Second) of

Torts, which is consistent with Indiana law regarding the duty owed to a

licensee: 4

A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,

(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm

4 Section 342 of the first Restatement of Torts was quoted approvingly by this Court in Wozniczka v. McKean, 144 Ind. App. 471, 486-87, 247 N.E.2d 215, 223 (1969).

Court of Appeals of Indiana | Opinion 23A-CT-945 | October 23, 2023 Page 8 of 11 to such licensees, and should expect that they will not discover or realize the danger, and

(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and

(c) the licensees do not know or have reason to know of the condition and the risk involved.[ 5]

We further find comment h to that section particularly relevant:

A possessor of land who permits licensees to enter is subject to liability for bodily harm caused to them by the dangerous state in which he permits a natural or artificial condition to remain, if, but only if, he not only knows of the condition but also should realize that it involves an unreasonable risk of causing physical harm to the particular licensee harmed thereby. In determining whether the possessor should realize that a known condition involves not only a risk but an unreasonable risk, the character of the invitation or permission is important. A condition, no matter how dangerous to those who come in contact with it, can involve risk to a particular licensee only if he may be expected to encounter it in the exercise of his license. Thus, if a possessor gives to another a license to come upon the land by day, he may have no reason to expect the licensee to enter by night. Therefore he may be under no duty to warn the licensee of a condition which would be obvious in daylight. So too, a possessor has no reason to expect the licensee’s presence at any point other than that within which the license gives him the privilege to enter. He is, therefore, under no duty to

5 “The words ‘the risk’ denote not only the existence of a risk, but also its extent.” Restatement (Second) of Torts § 342 cmt. a (Am. Law Inst. 1965). “Thus ‘knowledge’ of the risk involved in a particular condition implies not only that the condition is recognized as dangerous, but also that the chance of harm and the gravity of the threatened harm are appreciated.” Id.

Court of Appeals of Indiana | Opinion 23A-CT-945 | October 23, 2023 Page 9 of 11 warn licensees of conditions which exist outside of the area covered by the license.

Id. cmt. h (emphasis added).

[14] Based on the foregoing, we conclude that whether VeoRide owed Dolsen a

duty to warn him of the gap in the wall next to the stairwell depends upon

underlying facts that require resolution by the trier of fact, including whether

VeoRide should have realized that the condition involved an unreasonable risk

of causing physical harm to Dolsen (who did not know or have reason to know

of the condition and the risk involved), whether VeoRide should have expected

that Dolsen would not discover or realize the danger, and whether VeoRide had

reason to expect that Dolsen would encounter the condition in the exercise of

his license. Assuming arguendo that such a duty existed, we further conclude

that genuine issues of material fact exist regarding whether VeoRide’s failure to

warn Dolsen of the condition and the risk involved was a breach of that duty,

that is, a failure to exercise reasonable care under the circumstances pursuant to

Restatement Section 342(b); among the factors to be considered are whether

VeoRide had a reasonable opportunity to alert fire department personnel.

Additional issues of material fact exist regarding whether any breach of a duty

to warn proximately caused Dolsen’s injuries and the extent to which Dolsen

might have contributed to his injuries for purposes of the Comparative Fault

Act. Consequently, we reverse the trial court’s entry of summary judgment in

VeoRide’s favor and remand for further proceedings.

Court of Appeals of Indiana | Opinion 23A-CT-945 | October 23, 2023 Page 10 of 11 [15] Reversed and remanded.

Brown, J., and Felix, J., concur.

Court of Appeals of Indiana | Opinion 23A-CT-945 | October 23, 2023 Page 11 of 11