Slater v. Ridinger Enters., Inc.

SASHA SLATER, Appellant-Plaintiff,

v.RIDINGER ENTERPRISES, INC., d/b/a SHAKAMAK IGA, Appellee-Defendant.

No. 28A05-1104-CT-207

COURT OF APPEALS OF INDIANA

February 24, 2012

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

JOHN P. NICHOLS

Anderson & Nichols

Terre Haute, Indiana

ATTORNEYS FOR APPELLEE:

KYLE A. LANSBERRY

THERESA R. PARISH

Lewis Wagner, LLP

Indianapolis, Indiana

APPEAL FROM THE GREENE CIRCUIT COURT

The Honorable Erik C. Allen, Judge

Cause No. 28C01-0905-CT-226

MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge Sasha Slater fell and was injured while shopping at the Shakamak IGA. Slater sued, and IGA moved for and was granted summary judgment on the ground Slater did not provide evidence of what caused her fall. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

The facts favorable to Slater, the non-moving party, are that in March of 2008, Slater fell as she was walking through the laundry aisle toward the front of the store. Slater did not know whether she saw water on the floor before she fell, but when she sat up after falling, she was cold and her back and buttocks felt wet. She saw water on the floor around her and felt it with her hands. Slater testified she is five feet one inch tall, and the wet area was "about half the size of me." (App. at 44.) An ambulance was summoned, and the paramedics noticed Slater was "in a puddle of water."¹ (Id.) Someone from the store told Slater the roof had been leaking. Slater testified she saw at least four buckets in various areas of the store before she fell, including one near the end of the laundry aisle. There was water in some of the buckets and before she fell Slater saw a sign near the end of the laundry aisle that she thought said "Wet Floor" or "Caution - Wet Floor." (Id. at 45.)

DISCUSSION AND DECISION

A party is entitled to summary judgment on demonstrating there is no genuine issue of fact as to a determinative issue, unless the non-moving party comes forward with contrary evidence showing an issue of fact for trial. Dugan v. Mittal Steel USA Inc., 929 N.E.2d 184, 185-86 (Ind. 2010). A reviewing court construes all facts and reasonable inferences in favor of the non-moving party and determines whether the moving party has shown from the designated evidentiary matter that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. Id. at 186. A de novo standard of review applies where the dispute is one of law rather than fact. Id.

A summary judgment is presumed valid, and the appellant has the burden to demonstrate the summary judgment was erroneous. Hayden v. Paragon Steakhouse, 731 N.E.2d 456, 458 (Ind. Ct. App. 2000). However, we must carefully assess the trial court's decision to ensure the non-movant was not improperly denied her day in court. Id.

Negligence will not be inferred; rather, specific factual evidence, or reasonable inferences that might be drawn therefrom, on each element must be designated to the trial court. Id. An inference is not reasonable when it rests on no more than speculation or conjecture. Id. Slater offers more than speculation or conjecture, and the evidence she presented gives rise to a reasonable inference there might have been negligence.

IGA cites a number of decisions it asserts stand for the proposition that if a plaintiff cannot explain how or why an accident happened, she is offering only "inferential speculation." (Br. of Appellee, Ridinger Enterprises, Inc. d/b/a/ Shakamak IGA (hereinafter"IGA Br.") at 4). She cites Hayden; Ogden Estate v. Decatur County Hosp., 509 N.E.2d 901 (Ind. Ct. App. 1987), reh'g denied, trans. denied; Wright Corp. v. Quack, 526 N.E.2d 216 (Ind. Ct. App. 1988), trans. denied; Scott County Family YMCA, Inc. v. Hobbs, 817 N.E.2d 603 (Ind. Ct. App. 2004); and Taylor v. Cmty. Hosps. of Ind., Inc., 949 N.E.2d 361 (Ind. Ct. App. 2011). All those decisions are distinguishable.

The trial court relied on Hayden, where "[t]he evidence designated to the trial court clearly reveals [Hayden] did not know what caused his fall." 731 N.E.2d at 458. Hayden alleged in his complaint that he slipped and fell on snow and ice on Paragon's property. But he testified in his deposition that he did not see any snow on the pavement where he fell and that he did not know whether there was any ice in the area. He testified it was his "belief" that he slipped on ice and that he "suspects" he slipped on "something." Id. No one witnessed the fall. Hayden said in his deposition that he did not recall the pavement being slippery before he fell.

We noted that absent some factual evidence, negligence cannot be inferred from the mere fact of an accident, and causation may not be inferred merely from the existence of an allegedly negligent condition. Id. As there was no evidence on how or why Hayden fell, he was "relying on speculation and conjecture to explain the proximate cause of his injuries. The Haydens were required to come forward with specific facts that demonstrate the existence of a negligent condition that caused [Hayden's] fall and, therefore, his injuries." Id. at 458-59. As they did not, Paragon was entitled to judgment as a matter of law. Id. at 459.

In Ogden Estate, the estate relied solely on the fact that Ogden was found lying on the floor to prove slickness and, in turn, negligence. "From this Ogden speculates that a janitor mopped negligently. This Ogden cannot do. Negligence cannot be established by inferential speculation alone." 509 N.E.2d at 903. As there was no evidence the floor was slick or slippery, Ogden could not place in issue the Hospital's evidence that established a lack of slickness. Id. at 903-04.

In Wright Corp., 526 N.E.2d at 217-18, Quack alleged Wright's negligence caused her to slip and fall, but she did not prove there was a foreign substance on the floor or that Wright negligently treated or maintained its floors. Quack did not know why she fell, and Wright's employees testified there was no water other foreign object on the floor where Quack fell.

In Scott County Family YMCA, Hobbs stated he did not see water or any foreign substance on the floor and did not observe any defects in the floor. He further stated that "[I] just felt like I hit something wet and it just, it just slipped . . . like you slip on ice or something." 817 N.E.2d at 604. A YMCA employee was alerted that Hobbs had fallen, and she examined the area where he fell. She said the floor was flat and dry with "no moisture, debris, foreign substances, puddles or standing water," id., and the floor did not have any visible physical defects. We once again noted negligence cannot be inferred from the mere fact of an accident, and determined YMCA met its initial burden to show there was no genuine issue of material fact that would allow a trier of fact to find anything more than a mere accident. Accordingly, the burden was placed on Hobbs to show there was a genuineissue of material fact, id. at 604-05, and Hobbs did not meet that burden. Id. at 605.

Finally, IGA offers Taylor, where we found Taylor could offer "only conjecture that the floor was slippery or wet" when she fell: "she infers that something was on the Hospital's floor because she fell. She, however, admits that she neither saw nor felt anything on the floor prior to or in the moments after her fall." 949 N.E.2d at 366 (emphasis added).

The case before us is distinguishable, as Slater, unlike the plaintiffs in every decision on which IGA relies, did offer evidence from which an inference could be drawn that she fell because the floor was wet and IGA therefore might have been negligent.² The case before us is controlled by Barsz v. Max Shapiro, Inc., 600 N.E.2d 151, 153 (Ind. Ct. App. 1992), and Golba v. Kohl's Dept. Store, Inc., 585 N.E.2d 14 (Ind. Ct. App. 1992), reh'g denied, trans. denied.

In Barsz, Mrs. Barsz testified in her deposition that she "slipped on something that was like I was outside on ice or maybe it was grease." 600 N.E.2d at 153. Mrs. Barsz did not specifically identify the object or defect that caused her fall, but she did testify that she slipped on "something." We determined a finding of negligence therefore would not require "inferential speculation," id., because Barsz's testimony, if believed, would establish there was a foreign object on the floor. Id. We noted evidence a water glass was found on the floor in the area where Mrs. Barsz fell. Mrs. Barsz did not specifically allege she slipped ona water glass, but Shapiro presented testimony demonstrating that potentially hazardous object was on the floor:

Since

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