CRONE, Judge.
Sharon Handy appeals the trial court's entry of summary judgment in favor of P.C. Building Materials, Inc., PC Properties, LLC, David A. Stemler, and Karen L. Stemler (collectively "PC") on Handy's negligence claim against PC. The sole issue presented for our review is whether the trial court properly entered summary judgment in favor of PC. Concluding that genuine issues of material fact remain for determination by a jury, we reverse and remand for further proceedings.
The limited undisputed facts available for our review indicate that on Saturday, July, 10, 2010, Handy entered onto the P.C. Building Materials store property in New Albany. The store was open for business and Handy went to the store to shop for items for a home remodeling project. While inside the store, Handy spoke to a store salesperson who directed her to look at some granite countertops that were displayed outside the store. The countertops were leaning against the outside wall of the store, just to the side of the front entrance. Handy moved the countertops around a bit and took some rough measurements before leaving the premises. The next day, Sunday, July 11, 2010, Handy decided to return to the store to
On July 10, 2012, Handy filed a negligence complaint against PC seeking damages for her injury. On September 26, 2013, PC filed a motion for summary judgment and designation of evidence arguing that Handy was a trespasser on the premises, or at best a licensee, and that PC breached no duty to her as a matter of law. On November 1, 2013, Handy served her response and designation of evidence in opposition to PC's motion, arguing that she was a business invitee and that a genuine issue of material fact remained as to whether PC breached its duty to her.
Our standard of review in summary judgment cases is well settled.
Hassan v. Begley, 836 N.E.2d 303, 306-07 (Ind.Ct.App.2005) (citations omitted). "In determining whether genuine issues of material fact exist, the court must accept as true those facts established by evidence favoring the nonmoving party and resolve all doubts against the moving party." Id. at 306. The trial court's grant of a motion for summary judgment comes to us cloaked with a presumption of validity, Altevogt v. Brand, 963 N.E.2d 1146, 1150 (Ind.Ct.App.2012), and the party appealing from a summary judgment decision has the burden of persuading us that the trial court's decision was erroneous. Walker v. Martin, 887 N.E.2d 125, 130 (Ind.Ct.App. 2008), trans. denied.
In the present case, the trial court entered findings of fact and conclusions thereon in support of it entry of summary judgment. "Special findings are not required in summary judgment proceedings and are not binding on appeal." Warren v. Warren, 952 N.E.2d 269, 269 (Ind.Ct. App.2011). However, such findings offer this Court valuable insight into the trial court's rationale for its review and facilitate our appellate review. Id.
PC requests that we begin our review by determining what evidence was properly designated to the trial court and is therefore properly before this Court. PC filed its motion for summary judgment and designation of evidence on September 26, 2013. Handy did not serve her response and designation of evidence in opposition to summary judgment until November 1, 2013.
In HomEq Servicing Corp. v. Baker, our supreme court described this as a "bright line rule" and explained,
883 N.E.2d 95, 98 (Ind.2008) (quoting Desai v. Croy, 805 N.E.2d 844, 850 (Ind.Ct. App.2004), trans. denied.). The court recently reiterated this procedural bright line rule, stating that it was now "firmly entrenched as an article of faith in Indiana law," providing "clarity and certainty to an area of law that for too long lacked both." Mitchell v. 10th and The Bypass, LLC, 3 N.E.3d 967, 973 (Ind.2014).
Here, on October 29, 2013, Handy's counsel filed with the trial court a "Notice of Agreed Extension of Time" stating that counsel for PC had agreed to allow him an extension of time to respond to the motion for summary judgment. However, at no time within the thirty-day response period did Handy's counsel file a request with the trial court for an extension of time in which to file the summary judgment response. Absent a formal request filed with and subsequently granted by the trial court, we agree with PC that the trial court was without the discretion to accept Handy's late-filed summary judgment response. As we have recognized in this exact context, although "we encourage collegiality among members of the legal profession and endeavor to promote cooperation and conflict resolution outside the walls of the courthouse, in certain circumstances parties must still seek formal relief directly from the trial court." Booher v. Sheeram, LLC, 937 N.E.2d 392, 394 (Ind. Ct.App.2010), trans. denied (2011). This is an example of such a circumstance. Id. Because Handy failed to file a response to summary judgment or request an extension from the trial court within the prescribed time, the trial court had no discretion to alter the time limits in Trial Rule 56, and Handy's response should not have been considered. DeLage Landen Fin. Servs., Inc. v. Cmty. Mental Health Ctr., Inc., 965 N.E.2d 693, 699 (Ind.Ct.App. 2012), trans. denied.
Considering only the evidence designated by PC, the question remains as to whether summary judgment in its favor was appropriately granted. Indeed, summary judgment "shall not be granted as a matter of course because the opposing party fails to offer opposing affidavits or evidence, but the court shall make its determination from the evidentiary matter designated to the court." Ind. Trial Rule 56(C). Summary judgment is appropriate only if the designated evidentiary matter
Handy's complaint sounds in negligence. To prevail on a claim of negligence, the plaintiff must prove: (1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty by the defendant, and (3) an injury to the plaintiff as a proximate result of the breach. Key v. Hamilton, 963 N.E.2d 573, 579 (Ind.Ct. App.2012), trans. denied. Summary judgment is rarely appropriate in negligence cases because they are particularly fact sensitive and are "governed by a standard of the objective reasonable person — one best applied by the jury after hearing all of the evidence." Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind.2004). Still, summary judgment is appropriate when the undisputed material evidence negates an element of the plaintiff's claim. Id. at 385.
Handy asserts that summary judgment was inappropriate because genuine issues of material fact remain regarding her status on the premises and PC's corresponding duty of care. We agree.
A person entering upon the land of another enters as an invitee, a licensee, or a trespasser. Rhoades v. Heritage Invs., LLC, 839 N.E.2d 788, 791 (Ind.Ct. App.2005), trans. denied (2006). "The person's status on the land defines the nature of the duty owed by the landowner to the visitor." Huffman v. Dexter Axle Co., 990 N.E.2d 947, 952 (Ind.Ct.App.2013) (quoting Rhoades, 839 N.E.2d at 791). As a general rule, a person's status on the land, along with the duty owed by the landowner, is a matter left to the determination of the trial court and not the jury. Winfrey v. NLMP, Inc., 963 N.E.2d 609, 613 (Ind.Ct. App.2012). However, a person's status on the land may turn on factual issues that must be resolved by the trier of fact, thereby precluding disposition by summary judgment. Kopczynski v. Barger, 887 N.E.2d 928, 931 (Ind.2008). Such is the case here.
We have summarized the nature of the duty owed to visitors as follows:
Yates v. Johnson Cnty. Bd. of Comm'rs, 888 N.E.2d 842, 848-49 (Ind.Ct.App.2008) (citations and some quotation marks omitted).
Based upon the limited designated facts, we can affirmatively conclude that Handy was not a trespasser. We respectfully disagree with the trial court and conclude that the mere fact that Handy did not have express verbal permission from PC to enter the premises on that Sunday did not make her a trespasser. We further disagree with PC's assertion that the fact that the store was closed when Handy entered onto the property is dispositive as to Handy's status.
It is undisputed that Handy entered onto the property to view the countertops for potential purchase, the exact purpose for which they were displayed, and not simply for her own convenience and curiosity. On its face, PC's conduct justified others in believing that PC was willing to have them enter the premises if they desired
Handy urges that she was an invitee/business visitor
PC maintains that, even assuming that Handy qualified as an invitee and was owed the highest duty of reasonable care, such duty was not breached by PC as a matter of law. The question of whether there has been a breach of duty in a negligence action is generally a jury question and inappropriate for resolution by summary judgment. N. Ind. Pub. Serv. Co. v. Sharp, 790 N.E.2d 462, 466 (Ind.2003). Indeed, whether a duty of care has been breached is only a question of law when the facts are undisputed and only one inference can be drawn from them. Id. We cannot say that the limited facts before us lead to but one inference.
Indiana has adopted the Restatement (Second) of Torts Section 343, which provides that a possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
Burrell, 569 N.E.2d at 639-40 (quoting RESTATEMENT (SECOND) OF TORTS § 343 (1965)). All three conditions set forth in Section 343 must be met for liability to attach. Harradon v. Schlamadinger, 913 N.E.2d 297, 301 (Ind.Ct.App.2009), trans. denied (2010). Additionally, Section 343A of the Restatement (Second) of Torts, which discusses known or obvious dangers, is meant to be read along with Section 343. Christmas, 952 N.E.2d at 881. That Section "provides, in part, as follows: `A possessor of land is not liable to his invitees for physical harm caused to them by any... condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.'" Id. (citing Smith v. Baxter, 796 N.E.2d 242, 245 (Ind.2003) (quoting RESTATEMENT (SECOND) OF TORTS § 343A)). Indeed, "`[t]he comparative knowledge of a possessor of land and an invitee regarding known or obvious dangers may properly be taken into consideration
Here, reasonable people could differ as to whether the granite countertops represented a known or obvious danger to Handy. Moreover, the obviousness of any danger does not resolve the issue, see Rhodes, 805 N.E.2d at 388, as questions remain whether PC: (1) knew or by the exercise of reasonable care should have realized that the granite involved an unreasonable risk of harm to Handy; (2) should have expected that she would not realize the unreasonable risk of harm of moving, pulling, or tipping the granite forward; and (3) failed to exercise reasonable care to protect her against the danger. In short, assuming that Handy was an invitee on the premises, genuine issues of material fact remain as to whether PC breached its duty of care to her.
Based on the foregoing, the trial court erred when it entered summary judgment in favor of PC. We are mindful that even if this Court believes that the nonmoving party will not be successful at trial, summary judgment should not be granted where material facts conflict or conflicting inferences are possible. Dunaway v. Allstate Ins. Co., 813 N.E.2d 376, 384 (Ind.Ct. App.2004). Therefore, we reverse the trial court's entry of summary judgment and remand for further proceedings consistent with this opinion.
Reversed and remanded.
MATHIAS, J., concurs.
RILEY, J., concurs in part and dissents in part with opinion.
RILEY, Judge, concurring in part and dissenting in part.
While I agree with the majority's conclusion regarding the extent of the designated evidence available for our review, I respectfully dissent from its conclusion that a genuine issue of material fact remains as to Handy's status on the premises and PC's corresponding duty of care. Although the majority could "affirmatively conclude that Handy was not a trespasser," based on "the limited record," it could not determine "as a matter of law whether Handy had an implied invitation to enter onto the premises, or merely permission to do so." Op. pp. 609, 610.
Finding that the question of Handy's status is a matter of law, my analysis of the designated evidence is in line with the trial court's conclusion that Handy is "a trespasser," or at best, a licensee. See Appellant's App. p. 10; Morningstar v. Maynard, 798 N.E.2d 920, 922 (Ind.Ct. App.2003). "Even if considering a stricter standard, [PC] has not presented a genuine issue that the countertops were a latent danger, and further nothing to indicate that [PC] could have realized the countertops presented an unreasonable danger that [Handy] would have discovered." Appellant's App. p. 10. I would affirm the trial court's summary judgment in every respect.