COA split over reversing summary judgment in slip-and-fall case

The Indiana Court of Appeals was divided Wednesday over whether a Merrillville store failed to preserve its issue of prejudice by opposing summary judgment granted to two companies in a negligence lawsuit filed by a woman who fell on ice in front of the northern Indiana Pier 1 Imports store.

Carolyn Harris fell on an ice-covered sidewalk in front of the Pier 1 store as an employee was salting the sidewalk. Pier 1’s lease agreement with Acadia Merrillville Realty requires Acadia keep the sidewalk free from ice and snow. Acadia contracted with Boyd Construction Company to provide that work. Harris and her husband sued the three companies, which all filed for summary judgment. The trial court ruled Acadia and Boyd didn’t breach their respective duties of care and granted summary judgment for them. The court denied Pier 1’s motion, as well as its motion to correct error.

In Pier 1 Imports (U.S.), Inc., v. Acadia Merrillville Realty, L.P. and Boyd Construction Company, Inc., 45A03-1207-CT-318, Acadia and Boyd argued Pier 1 lacks standing to challenge the awards because it failed to preserve the issue of prejudice by objecting to Acadia’s and Boyd’s motions or advising the trial court of an intent to allocate fault to Acadia and Boyd as nonparties.

“Because Pier 1 did not have an opportunity to object to Acadia’s and Boyd’s dismissal prior to the court’s ruling on their motions for summary judgment, we conclude that Pier 1 has standing to appeal,” Judge Cale Bradford wrote for the majority, which included Judge Patricia Riley.

The majority went on to find that whether Acadia was discharged of its duty of care merely by contracting with Boyd is a question for the jury to decide. And, because there is evidence that additional salting was necessary after Boyd had already salted the sidewalk, a jury could reasonably infer that Boyd failed to exercise reasonable care in performing the snow and ice removal services, Bradford wrote.

Judge Elaine Brown dissented, believing Pier 1 had a practical opportunity to object to the motions for summary judgment by Acadia and Boyd prior to their dismissal. She cited U-Haul Intern Inc. v. Nulls Machine and Mfg. Shop, 736 N.E.2d 271, 280 (Ind. Ct. App. 2000), Nationwide Ins. Co. v. Parmer, 958 N.E.2d 802, 807 (Ind. Ct. App. 2011), and the Indiana Supreme Court opinions upon which those decisions rely to support her decision that Pier 1 waived its claim for appeal.