ILNews

COA split over reversing summary judgment in slip-and-fall case

Back to TopCommentsE-mailPrintBookmark and Share

The Indiana Court of Appeals was divided Wednesday over whether a Merrillville store failed to preserve its issue of prejudice by opposing summary judgment granted to two companies in a negligence lawsuit filed by a woman who fell on ice in front of the northern Indiana Pier 1 Imports store.

Carolyn Harris fell on an ice-covered sidewalk in front of the Pier 1 store as an employee was salting the sidewalk. Pier 1’s lease agreement with Acadia Merrillville Realty requires Acadia keep the sidewalk free from ice and snow. Acadia contracted with Boyd Construction Company to provide that work. Harris and her husband sued the three companies, which all filed for summary judgment. The trial court ruled Acadia and Boyd didn’t breach their respective duties of care and granted summary judgment for them. The court denied Pier 1’s motion, as well as its motion to correct error.

In Pier 1 Imports (U.S.), Inc., v. Acadia Merrillville Realty, L.P. and Boyd Construction Company, Inc., 45A03-1207-CT-318, Acadia and Boyd argued Pier 1 lacks standing to challenge the awards because it failed to preserve the issue of prejudice by objecting to 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,” Judge Cale Bradford wrote for the majority, which included Judge Patricia Riley.

The majority went on to find that whether Acadia was discharged of 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 had already salted the sidewalk, a jury could reasonably infer that Boyd failed to exercise reasonable care in performing the snow and ice removal services, Bradford wrote.

Judge Elaine Brown dissented, believing Pier 1 had a practical opportunity to object to the motions for summary judgment by Acadia and Boyd prior to their dismissal. She cited U-Haul Intern Inc. v. Nulls Machine and Mfg. Shop, 736 N.E.2d 271, 280 (Ind. Ct. App. 2000), Nationwide Ins. Co. v. Parmer, 958 N.E.2d 802, 807 (Ind. Ct. App. 2011), and the Indiana Supreme Court opinions upon which those decisions rely to support her decision that Pier 1 waived its claim for appeal.

 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  2. If the end result is to simply record the spoke word, then perhaps some day digital recording may eventually be the status quo. However, it is a shallow view to believe the professional court reporter's function is to simply report the spoken word and nothing else. There are many aspects to being a professional court reporter, and many aspects involved in producing a professional and accurate transcript. A properly trained professional steno court reporter has achieved a skill set in a field where the average dropout rate in court reporting schools across the nation is 80% due to the difficulty of mastering the necessary skills. To name just a few "extras" that a court reporter with proper training brings into a courtroom or a deposition suite; an understanding of legal procedure, technology specific to the legal profession, and an understanding of what is being said by the attorneys and litigants (which makes a huge difference in the quality of the transcript). As to contracting, or anti-contracting the argument is simple. The court reporter as governed by our ethical standards is to be the independent, unbiased individual in a deposition or courtroom setting. When one has entered into a contract with any party, insurance carrier, etc., then that reporter is no longer unbiased. I have been a court reporter for over 30 years and I echo Mr. Richardson's remarks that I too am here to serve.

  3. A competitive bid process is ethical and appropriate especially when dealing with government agencies and large corporations, but an ethical line is crossed when court reporters in Pittsburgh start charging exorbitant fees on opposing counsel. This fee shifting isn't just financially biased, it undermines the entire justice system, giving advantages to those that can afford litigation the most. It makes no sense.

  4. "a ttention to detail is an asset for all lawyers." Well played, Indiana Lawyer. Well played.

  5. I have a appeals hearing for the renewal of my LPN licenses and I need an attorney, the ones I have spoke to so far want the money up front and I cant afford that. I was wondering if you could help me find one that takes payments or even a pro bono one. I live in Indiana just north of Indianapolis.

ADVERTISEMENT