Summary judgment for cemetery affirmed after parents’ fall

A couple injured while visiting their daughter’s grave will not be able to reinstate their negligence action against the cemetery where their daughter is interred after the Indiana Court of Appeals upheld summary judgment for the cemetery.

Donald and Barbara Lowrey sued Elm Ridge Funeral Home and Cemetery after an April 2019 visit to the Delaware County memorial park. While walking back to their car after visiting their daughter’s internment site, Donald took a “shortcut” by stepping over a patch of grass to attempt to reach a sidewalk. His foot, however, landed partially on the edge of the sidewalk, causing him to roll his ankle and fall forward.

Donald struck Barbara as he fell, and she hit the ground. Both of them were injured. Other than some erosion described as being “in plain sight,” the sidewalk was clear.

After their falls, the couple sued Elm Ridge for negligence, claiming “that the ground/soil erosion where the grass/ground meets the edge of the sidewalk create[d] a hazardous condition and caused [their] trips/falls.” The cemetery moved for summary judgment, which the Delaware Circuit Court granted.

In affirming the summary judgment ruling, Judge Terry Crone first noted that the Court of Appeals would follow the analysis under Burrell v. Meads, 569 N.E.2d 637 (Ind. 1991), which addresses negligence based on an allegedly dangerous condition.

“Doubtless, Elm Ridge had a duty to maintain its sidewalks in a safe condition,” Crone wrote in undertaking that analysis. “The undisputed material facts show that it met this duty, as evidenced by the designated photographic exhibits depicting flat, even, unobstructed, and wide sidewalks that appear to be in pristine condition.

“… The undisputed material facts show that the approximately two-inch differential between the sidewalk and the adjacent ground was an open and obvious condition,” Crone continued. “… The Lowreys nevertheless claim that because many invitees are in a state of emotional distress during their visits to the cemetery, Elm Ridge should have anticipated their harm despite their knowledge of the obvious condition.

“We disagree. While in a general sense one can always anticipate that one who steps half on and half off any surface may suffer a fall, this is too speculative an occurrence to create in Elm Ridge a legal duty to have anticipated it regardless of the Lowreys’ knowledge of the condition.”

Thus, finding Elm Ridge not liable as a matter of law, the COA affirmed summary judgment for the cemetery in Donald Lowrey and Barbara Lowrey v. SCI Funeral Services, Inc., d/b/a Elm Ridge Funeral Home and Cemetery, LLC a/k/a Elm Ridge Funeral Home and Memorial Park, 20A-CT-1309.

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