Rose v. Birch Tree Holdings, LLC

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GAYLIN ROSE, Plaintiff, v. BIRCH TREE HOLDINGS, LLC, et al., Defendants.

No. 2:18 CV 197

United States District Court, N.D. Indiana, Hammond Division

August 25, 2022

OPINION AND ORDER

JAMES T. MOODY JUDGE UNITED STATES DISTRICT COURT

This matter is before the court on the parties' cross motions for summary judgment and related motions. (DE ## 168, 171 173, 176, 190, 210, 211, 216.) For the reasons that follow plaintiff's motion is denied and defendants' motions are granted in part and denied in part.

I. BACKGROUND^[1]

On November 21, 2016, there was a fire in the apartment where plaintiff Gaylin Rose lived with her four minor children. (DE # 170-5 at 13.) Rose survived the fire, but all four of her children died. (Id.)

Rose leased the apartment from defendant Birch Tree Holdings, LLC (“Birch Tree”). (DE # 170-1 at 2.) Defendants Joshua Ayres and Troy Helderman are the sole members and co-managers of Birch Tree. (DE # 170-1 at 1.)

Rose's lease began May 1, 2016, and she moved in sometime that same month. (DE # 170-1 at 2; DE # 170-2 at 6.) Rose's apartment had two bedrooms, one on the first floor (where Rose slept) and one on the second floor (where her children slept). (DE # 170-1 at 2; DE # 170-5 at 15.) There was one smoke detector in the apartment, situated in the hallway outside the second story bedroom. (DE # 170-1 at 2.) The parties dispute whether this smoke detector had a battery when Rose moved into the apartment. Rose has no memory of maintaining or testing the smoke detector in the apartment after she moved in. (DE # 171-6 at 10-11.) It is undisputed that the apartment did not contain the statutorily mandated number of smoke detectors. Investigators determined that the fire was an incendiary (intentional) fire that possibly used ignitable liquids. (DE # 170-5 at 3.)

Defendants designated Todd Hetrick as an expert witness to provide his opinion regarding Rose and her children's window of opportunity to safely exit the apartment during the fire. (DE # 170-5.) Hetrick opined, “it cannot be reliably concluded that Ms. Rose would have had sufficient time to wake herself and her children and safely egress from the structure in an intentionally set fire scenario even with a functional smoke alarm in the kitchen or living room.” (DE # 170-5 at 3-4.) He based this opinion, in part, on his estimate that the available safe egress time for the fire was between 60 and 200 seconds if ignitable liquids were used, and 110 to 250 seconds if ignitable liquids were not used. (Id. at 4.) He estimated that, in the best case scenario, it would take between 110 and 250 seconds for an adult sleeping in the first floor bedroom to wake four children on the second floor and safely exit the apartment. (Id.) However, Hetrick testified that he cannot reliably exclude the possibility that Rose and her children could have safely exited the apartment had there been a working smoke detector. (DE # 17813 at 117.) He testified, “[w]hat I've concluded is that it is possible that the available safety egress time was less than (sic) required safety egress time for the incendiary fire at 103 East Columbia Street, especially if ignitable liquids were used in the fire, which would make it far less likely to successfully escape from the fire environment.” (Id.)

Rose filed the present suit against defendants alleging that their negligence caused her injuries and the deaths of her children. (DE ## 1, 42.) Each party has filed a motion for summary judgment. The motions are fully briefed and are ripe for ruling.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 56 requires the entry of summary judgment, after adequate time for discovery, against a party “who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “A motion for summary judgment is a contention that the material facts are undisputed and the movant is entitled to judgment as a matter of law. The party pursuing the motion must make an initial showing that the agreed-upon facts support a judgment in its favor.” Hotel 71 Mezz Lender LLC v. Nat'l Ret. Fund, 778 F.3d 593, 601 (7th Cir. 2015) (internal citation omitted).

“[I]n ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986). “Where . . . the movant is seeking summary judgment on a claim as to which it bears the burden of proof, it must lay out the elements of the claim, cite the facts which it believes satisfies these elements, and demonstrate why the record is so one-sided as to rule out the prospect of a finding in favor of the non-movant on the claim.” Id.; see also Reserve Supply Corp. v. Owens-Corning Fiberglass Corp., 971 F.2d 37, 42 (7th Cir. 1992). “If the movant has failed to make this initial showing, the court is obligated to deny the motion.” Hotel 71 Mezz Lender LLC, 778 F.3d at 601.

In responding to a motion for summary judgment, the non-moving party must identify specific facts establishing that there is a genuine issue of fact for trial. Palmer v. Marion County, 327 F.3d 588, 595 (7th Cir. 2003). In doing so, the non-moving party cannot rest on the pleadings alone, but must present fresh proof in support of its position. Anderson, 477 U.S. at 248; Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th Cir. 1994). A dispute about a material fact is genuine only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. If no reasonable jury could find for the non-moving party, then there is no “genuine” dispute. Scott v. Harris, 550 U.S. 372, 380 (2007).

The court's role in deciding a summary judgment motion is not to evaluate the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Anderson, 477 U.S. at 249-50; Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7^th Cir. 1994).

In assessing a summary judgment motion, the district court views the facts in the light most favorable to, and draws all reasonable inferences in favor of, the nonmoving party. See Anderson v. Donahoe, 699 F.3d 989, 994 (7th Cir. 2012); Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011).

III. DISCUSSION

Rose's claim against defendants is for negligence. Because the children were minors and had no dependents, Indiana Code § 34-23-2-1 governs Rose's claims for their alleged wrongful deaths. See Est. of Sears ex rel. Sears v. Griffin, 771 N.E.2d 1136, 1138 (Ind. 2002) (Indiana's child wrongful death statute “allows parents or guardians to obtain damages for the wrongful death of unmarried children who had no legal dependents and were under twenty years of age (or under twenty-three and still in school).”). To prevail on her negligence claim, Rose must show: “(1) a duty owed to the plaintiff by the defendant; (2) a breach of that duty by allowing conduct to fall below the applicable standard of care; and (3) compensable injury proximately caused by the breach of duty.” Smith v. Walsh Constr. Co. II, LLC, 95 N.E.3d 78, 84 (Ind.Ct.App. 2018).

A. Ayres and Helderman's Duty to Rose

In this case, Ayres and Helderman argue that they are entitled to summary judgment because Rose cannot establish that they owed her any duty of care. (DE # 169 at 12; DE # 174 at 10.) Rose does not claim that Ayres and Helderman owed her a common law duty of care. Rather, she argues that they owed her a statutory duty, pursuant to Indiana Code § 22-11-18-3.5(e), to provide her with working smoke detectors. (DE # 195 at 11.) Indiana Code § 22-11-18-3.5(e) states: “[e]ach owner or the manager or rental agent of the owner is responsible for . . . the installation of a required smoke detector[.]” Rose argues that Ayres and Helderman owned and managed Birch Tree, which in turn owned and managed Rose's apartment. (DE # 195 at 11-12.)

Rose classifies her claim as one of negligence per se; however, it appears from her briefing that her claim is actually one for private right of action. The Indiana Court of Appeals has emphasized the difference in the two types of claims, and their respective burdens of proof. See Gresser v. Reliable Exterminators, Inc., 160 N.E.3d 184, 190 (Ind.Ct.App. 2020), transfer denied, 166 N.E.3d 909 (Ind. 2021); Stachowski v. Estate of Radman, 95 N.E.3d 542, 543 (Ind.Ct.App. 2018). The Court of Appeals has stated:

[T]o satisfy the duty element of a negligence claim, a plaintiff must demonstrate that a defendant had a duty toward the plaintiff that arose either at common law or by statute. If a defendant had an existing common-law duty of reasonable care, and if a plaintiff argues the defendant's violation of a statute or ordinance proves the breach of that existing common-law duty, then the plaintiff has been said to be raising a negligence-per-se claim. If, instead, the defendant had no common law duty and the plaintiff asserts a statute or ordinance created duty enforceable by plaintiff against defendant, then the plaintiff is said to be raising a private-right-of-action claim.

Gresser, 160 N.E.3d at 190 (citing Stachowski, 95 N.E.3d at 543).

A plaintiff who asserts that the defendant's duty arises from statute must establish that the statute provides a private right of action. Id. at 193. “The issue when a plaintiff claims a private right of action is whether the legislature that passed the statute ‘intended to establish not just a standard of conduct but a duty enforceable by tort law.'” Id. at 190, n.1 (quoting Stachowski, 95 N.E.3d at 545); see also Cuyler v. United States 362 F.3d 949, 952 (7th Cir. 2004) (“[T]he...