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COA reinstates nurse’s negligence claim against hospital

March 8, 2019

A woman suing a hospital for negligence after falling on property it owned successfully won over an appellate panel that found the hospital failed to designate sufficient evidence to affirmatively negate her claims.

While attempting to catch up with a co-worker in the parking lot of a building they frequently visited for work, Michelle Converse tripped over a landscaping rock on the sidewalk, fell and severely injured her arm.

Converse, an employee of American Nurse Care, was leaving a building rented out to ANC by owner Elkhart General Hospital. Converse filed a damages complaint against the hospital in July 2013, alleging negligence based on premises liability. When the hospital moved for and was ultimately granted summary judgment on her claims, Converse appealed the trial court’s decision.

The Indiana Court of Appeals first found that Converse’s designated evidence that the rock she tripped over was similar to those decorating the sidewalk’s edge, and that no borders were placed to prevent the rocks from scattering was sufficient to present a question of fact as to whether Elkhart General knew or should have known the rocks would create an unreasonable risk of harm if scattered.

“Elkhart General could have designated evidence in the form of an affidavit, expert opinion, or other evidence that established the landscaping rocks did not pose an unreasonable risk of harm,” Judge Margret Robb wrote for the court. “However, because it failed to do so, the burden never shifted to Converse, and the trial court therefore erred in granting summary judgment.”

The appellate court similarly concluded that Elkhart General failed to affirmatively negate Converse’s claim that the hospital had actual or constructive knowledge of the condition of the sidewalk. But because Elkhart General failed to demonstrate it lacked that knowledge, summary judgment was improper in Michelle Converse v. Elkhart General Hospital, Inc.,18A-CT-1658.

Lastly, the appellate court agreed with Converse’s argument that the trial court erred in concluding the landscaping rock was a “known and obvious” condition based on the evidence.

Considering similarities to the case found in Roumbos v. Samuel G. Vazanellis & Thiros & Stracci, PC, 95 N.E.3d 63 (Ind. 2018), the appellate court therefore determined that Elkhart General’s designated evidence did not establish that the rocks on the sidewalk and the risks they posed would be apparent to a reasonable person.

 It further noted the factual questions of whether the rocks posed a danger that was “known” to Converse, or that such danger should have been “obvious” to her remained for the trial court.

“(S)hould Elkhart General designate sufficient evidence to affirmatively negate an element of Converse’s claim in a future motion for summary judgment and should Converse fail to designate sufficient evidence to show a question of fact, Elkhart General could avoid these questions altogether,” Robb wrote.  “However, on the facts presented here, we conclude the trial court erred in granting summary judgment in favor of Elkhart General and we therefore reverse the trial court’s order and remand for further proceedings.”

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