Kroger loses summary judgment appeal in slip-and-fall case

The Indiana Court of Appeals has affirmed the denial of a Kroger store’s request for summary judgment against a woman who sued it for negligence after she injured herself in a slip-and-fall accident.

Ruth Lomax allegedly tripped and fell on a doormat while exiting a Marion County Kroger store in May 2017, injuring her back, ankle, right knee and shoulder and acquiring more than $40,000 in medical expenses. She sued Kroger Limited Partnership I, asserting Kroger was negligent for failing to maintain the area where she had fallen and for failing to warn and protect patrons from the tripping hazard.

Kroger denied the allegations and served Lomax with a request for admissions asking that Lomax admit that she was solely at fault for her fall, that she was not injured and that she did not incur any medical expenses. Just days prior, Lomax’s counsel withdrew from the case, and the request for admissions was not answered by its due date.

Although Kroger sought summary judgment, Lomax was granted her motion for an extension of time to respond to Kroger’s request for admissions. The Marion Superior Court subsequently granted Lomax’s motion to deem her answers to Kroger’s request for admissions as timely.

Kroger was then denied its motion to reconsider the ruling on Lomax’s answers and its motion for summary judgment but was granted a motion seeking to certify for interlocutory appeal both orders.

The Indiana Court of Appeals affirmed the trial court’s rulings, first finding that Kroger’s motion to certify the Marion Superior Court’s order on its motion to reconsider was untimely.

“But even if we overlook this procedural failure, Kroger’s motion to certify the order on its motion to reconsider was untimely for yet another reason,” Judge Paul Mathias wrote for the appellate court. “… Kroger’s motion to reconsider asked the trial court to overturn the December 13 and January 23 Orders in which the trial court permitted Lomax to file a belated response to Kroger’s request for admissions. Thus, the motion to certify the MTR Order was, in essence, a request to certify the December 13 Order and the January 23 Order.

“If Kroger wished to certify those orders for interlocutory appeal, it should have done so within thirty days of the trial court’s orders thereon, i.e., no later than January 12 and February 22, 2019, respectively. Having failed to do so, Kroger could not extend the time to seek interlocutory appeal of those orders by filing a motion to reconsider,” Mathias wrote.

The appellate court therefore declined to consider Kroger’s arguments on the matter, finding any issue regarding the propriety of the orders was not properly before the court in Kroger Limited Partnership I v. Ruth Lomax, 19A-CT-1201.

Additionally, the panel determined the trial court correctly concluded Kroger was not entitled to summary judgment because the basis for Kroger’s motion for summary judgment was  the admissions that had been withdrawn with permission from the trial court. The appellate court also determined Kroger was not entitled to the judgment because Lomax’s belated responses to the request for admissions denied that she was at fault for her injuries.