Gregg Peterson, Appellant-Plaintiff v. CM LLC (2025)

MEMORANDUM DECISION

Case Summary

[1] After slipping and falling as he exited a temporary restroom trailer at a Love's Travel Stops and Country Stores, Inc. (“Love's”) location in Memphis, Indiana, Gregg Peterson sued Love's and Cloud CM, LLC (“Cloud”). The trial court granted summary judgment to both Love's and Cloud. Peterson argues on appeal that the trial court erred in doing so, claiming that genuine issues of material fact remained as it relates to both Love's and Cloud. Because we agree, we reverse and remand the matter to the trial court for further proceedings.

Facts and Procedural History

[2] The undisputed facts establish that by the late-Spring of 2019, Love's had contracted with Cloud to remodel the restrooms at its Memphis location. While the remodeling project was underway, a temporary restroom trailer was installed just outside the store. Love's procedures required employees to check the conditions of the restrooms, including the temporary restroom trailer, at least once an hour and to complete any necessary cleaning or maintenance. Company policy further required employees “to place a yellow wet floor sign” on the restroom floor if they noticed it was wet during one of their courtesy checks of restroom conditions. Appellant's App. Vol. II p. 75.

[3] Peterson claims that he slipped and fell while exiting the temporary restroom trailer on Love's property on July 11, 2019. The weather that day was “[s]unny and very hot” with no rain. Appellant's App. Vol. II p. 102. There were three metal steps leading into and out of the temporary restroom trailer and a handle attached to the trailer just outside the door to the restrooms.¹ Peterson claimed to have noticed water on the floor of the restroom trailer and that his thought process had been “okay, this floor is wet, you need to be careful.” Appellant's App. Vol. II p. 101. Despite being careful, Peterson fell, suffering a “huge knot on the top of” his knee and a “scrape on the inside of [his] right arm.” Appellant's App. Vol. II p. 101. After he fell, Peterson claimed to have heard Love's then-store manager, Anthony White, tell someone, who Peterson believed to have been White's manager, on the telephone that “I told you about the water on the floor, now I have a man on the ground.” Appellant's App. Vol. II p. 102. White did not see any water inside the restroom trailer or on the steps when he approached Peterson shortly after Peterson's fall.

[4] On September 21, 2020, Peterson filed a complaint alleging that he had been injured as a result of Love's and Cloud's negligence. Peterson filed an amended complaint on May 3, 2021, again alleging that he had been injured on July 11, 2019, as a result of Love's and Cloud's negligence. Specifically, Peterson alleged that on July 11, 2019, he “was exiting the temporary restroom trailer with all due care when he slipped and fell down the stairs of the temporary restroom trailer.” Appellant's App. Vol. II p. 48. Peterson further alleged that because Love's and Cloud had acted negligently in their “maintenance and/or operation of” the temporary restroom trailer and had allowed “unreasonably dangerous conditions to exist” in the temporary restroom trailer, he “was caused to sustain serious bodily injury.” Appellant's App. Vol. II p. 48.

[5] On June 11, 2024, Love's moved for summary judgment. In support, Love's asserted that it had had no knowledge (actual or constructive) of the alleged water on the floor of the restroom trailer at the time of Peterson's fall. Love's further asserted that despite its lack of knowledge, Peterson had admitted in his deposition testimony that he had been aware that the alleged water on the floor posed a risk as it could cause him to slip and fall. Love's argued that

Peterson was fully aware of the water on the floor of the Restroom Trailer on the day of the Incident, and he appreciated the fact that the condition posed a risk of the type of danger alleged in this case (i.e., slipping and falling). Thus, the condition was both “known” and “obvious” for purposes of determining premises liability. Because Love's cannot be held liable to Mr. Peterson for injuries caused by a condition whose danger was known or obvious to him, Love's is entitled to summary judgment as a matter of law.

Appellant's App. Vol. II p. 86 (emphases in original).

[6] On June 14, 2024, Cloud moved for summary judgment. In support, Cloud asserted that it was entitled to judgment as a matter of law because it had owed no duty to Peterson. Cloud argued that

Cloud does not dispute that it subcontracted the installation of the temporary restroom. However, Cloud had no responsibility to install, perform upkeep, or maintain the temporary restroom. At the time of the accident, Cloud had no control over the temporary restroom or the area around it. Cloud had no duty to care for the temporary restroom, and owed no duty to the Plaintiff, and, therefore, did not breach a duty and thus was not negligent or liable. Summary judgment is appropriate because the Plaintiff fails to establish the necessary element of duty in their claim against Cloud for negligence.

Appellant's App. Vol. III p. 7.

[7] The trial court conducted a hearing on the summary-judgment motions on July 25, 2024. After considering the parties’ written submissions and oral arguments, on October 16, 2024, the trial court granted summary judgment in favor of both Love's and Cloud.

Discussion and Decision

I. Relevant Legal Authority

A. Summary Judgment Standard of Review

[8] We review a trial court's summary judgment decision de novo, using the same standard as the trial court. Griffin v. Menard, Inc., 175 N.E.3d 811, 812–13 (Ind. 2021).[² ] Summary judgment is appropriate “if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C).

“The moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law ․” Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1270 (Ind. 2009). If the movant satisfies that burden, “the burden then shifts to the non-moving party to designate and produce evidence of facts showing the existence of a genuine issue of material fact.” Id. “A fact is ‘material’ if its resolution would affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact is required to resolve the parties’ differing accounts of the truth ․” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009). “We must construe all factual inferences in favor of the non-moving party, and all doubts as to the existence of a material issue must be resolved against the moving party.” Hale v. SS Liquors, Inc., 956 N.E.2d 1189, 1191 (Ind. Ct. App. 2011).

The Indiana Supreme Court has explained, “Indiana consciously errs on the side of letting marginal cases proceed to trial on the merits, rather than risk short-circuiting meritorious claims.” Hughley v. State, 15 N.E.3d 1000, 1004 (Ind. 2014). As a result, while the non-moving party has the burden on appeal of showing the Court that the grant of summary judgment was erroneous, we carefully assess the trial court's decision to ensure the non-movant was not improperly denied a trial. Brown by Brown v. Southside Animal Shelter, Inc., 158 N.E.3d 401, 405 (Ind. Ct. App. 2020), adhered to on reh'g, 162 N.E.3d 1121 (2021), trans. denied.

Force v. New China Hy Buffet LLC, 217 N.E.3d 1275, 1277–78 (Ind. Ct. App. 2023).

[9] It is often said that summary judgment is rarely appropriate in negligence actions, because of their fact-sensitive nature and because they are governed by a standard of the objective reasonable person, which is a standard best applied by a jury. [Bell v. Grandville Coop., Inc., 950 N.E.2d 747, 748 (Ind. Ct. App 2011)]. “However, a defendant may obtain summary judgment in a negligence action when the undisputed facts negate at least one element of the plaintiff's claim.” Kincade v. MAC Corp., 773 N.E.2d 909, 911 (Ind. Ct. App. 2002). When a summary judgment movant designates evidence establishing prima facie that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law, the responding party may not rest upon the mere allegations of his or her pleadings. McDonald v. Lattire, 844 N.E.2d 206, 212 (Ind. Ct. App. 2006) (citing Ind. Trial Rule 56(E)). Hale, 956 N.E.2d at 1191–92.

B. Negligence Claims

[10] “To prevail on a negligence claim a plaintiff must show: (1) a duty owed to the plaintiff by defendant; (2) breach of that duty by allowing conduct to fall below the applicable standard of care; and (3) compensable injury proximately caused by defendant's breach of duty.” Bell, 950 N.E.2d at 749. “Absent a duty there can be no negligence or liability based upon the breach.” Podemski v. Praxair, Inc., 87 N.E.3d 540, 547 (Ind. Ct. App. 2017), trans. denied. “Whether a duty exists is a question of law for the courts to decide.” Id.

[11] The duty of care that a landowner owes to invitees upon their property is defined as follows:

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

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.

Burrell v. Meads, 569 N.E.2d 637, 639–40 (Ind. 1991) (quoting Restatement (Second) of Torts § 343 (1965)).

Bell, 950 N.E.2d at 749. We have previously concluded that under section 343 of the Restatement (Second) of Torts, “an invitee is ‘entitled to expect that the possessor will take reasonable care to ascertain the actual condition of the premises and, having discovered it, either to make it reasonably safe by repair or to give warning of the actual condition and the risk involved therein.’ ” Podemski, 87 N.E.3d at 547 (quoting Merrill v. Knauf Fiber Glass GmbH, 771 N.E.2d 1258, 1265 (Ind. Ct. App. 2002), trans. denied).

[12] In addition, Restatement (Second) of Torts § 343A(1), which addresses known and obvious dangers and is meant to be read in conjunction with § 343, provides: “A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” The word “known” denotes not only knowledge of the existence of the condition or activity itself, but also appreciation of the danger it involves, and thus the condition or activity must not only be known to exist, it must also be recognized that it is dangerous, and the probability and gravity of the threatened harm must be appreciated. Restatement (Second) of Torts § 343A, cmt. b. “Obvious” means that both the condition and the risk are apparent to and would be recognized by a reasonable person, in the position of the visitor, exercising ordinary perception, intelligence, and judgment. Id.

Id. at 547–48.

[13] Further, while a tort may generally be proven by circumstantial evidence, Force, 217 N.E.3d at 1278, “ ‘[n]egligence cannot be inferred from the mere fact of an accident, absent special circumstances.’ ” Scott Cnty. Fam. YMCA, Inc. v. Hobbs, 817 N.E.2d 603, 604 (Ind. Ct. App. 2004) (quoting Hale v. Cmty. Hospital of Indpls., Inc., 567 N.E.2d 842, 843 (Ind. Ct. App. 1991)). Likewise, “negligence cannot be established through inferential speculation alone.” Hale, 567 N.E.2d 843.

II. Analysis

A. Love's

[14] It is undisputed that Love's owed a general duty to invitees on its property. In its motion for summary judgment, Love's claimed that it had not breached its duty to Peterson, an invitee on Love's property, because it had not had actual or constructive knowledge of the water on the restroom floor prior to or at the time of Peterson's fall. For his part, Peterson designated evidence indicating that both he and another eyewitness had observed approximately one inch of water on the restroom floor at or near the time of Peterson's fall. Peterson also designated evidence which he claimed tended to prove that Love's had been aware of water issues in the temporary restroom trailer prior to his fall but had failed to remedy the issue. Specifically, Peterson designated evidence indicating that he had heard Love's then-store manager, White, tell someone, who Peterson believed to have been White's manager, on the telephone that “I told you about the water on the floor, now I have a man on the ground.” Appellant's App. Vol. II p. 102. Peterson also designated deposition testimony from White in which White indicated that Love's had known that there had been water and leaking issues in the temporary restroom trailer prior to Peterson's fall.

[15] Again, summary judgment “is rarely appropriate in negligence actions, because of their fact-sensitive nature[.]” Hale, 956 N.E.2d at 1191. When considering a motion for summary judgment, we construe “all factual inferences in favor of the non-moving party,” and resolve all “doubts as to the existence of a material issue” against the moving party. Id. Moreover, we consciously err “on the side of letting marginal cases proceed to trial on the merits, rather than risk short-circuiting meritorious claims.” Hughley, 15 N.E.3d at 1004.

[16] We express no opinion as to whether the designated evidence is sufficient to prove that Love's breached a duty to Peterson but we conclude that Peterson's designated evidence was sufficient to create an issue of material fact on the question of whether Love's acted negligently. See id. We therefore reverse the trial court's order granting summary judgment to Love's.³

B. Cloud

[17] In requesting summary judgment, Cloud argued that it

had no responsibility to install, perform upkeep, or maintain the temporary restroom. At the time of the accident, Cloud had no control over the temporary restroom or the area around it. Cloud had no duty to care for the temporary restroom, and owed no duty to the Plaintiff, and, therefore, did not breach a duty and thus was not negligent or liable.

Appellant's App. Vol. III p. 7. Cloud further argued that while it had overseen subcontracting out the installation of the temporary restroom trailer, it did not have any duty to maintain the temporary restroom trailer; that responsibility fell to Love's. The Indiana Supreme Court has recognized that “there is no breach of duty and consequently no negligence where a contractor merely follows the plans or specifications given him by the owner so long as they are not so obviously dangerous or defective that no reasonable contractor would follow them.” Peters v. Forster, 804 N.E.2d 736, 742 (Ind. 2004). Cloud asserted below that it had merely followed Love's plan by overseeing subcontracting out the installation of the temporary restroom trailer.

[18] For his part, Peterson argues that he designated evidence showing that Cloud had not merely followed the plans provided to it by Love's but, rather, had maintained responsibility with regard to the temporary restroom trailer. Specifically, Peterson designated evidence suggesting that Cloud had had an obligation to provide a safe and functional temporary restroom trailer. Cloud had also maintained the responsibility to oversee installation, waste removal, and removal of the trailer once the project had been completed. Peterson designated evidence indicating that Cloud had acted as a so-called “middleman” between Love's and the subcontractor that had provided the temporary restroom trailer, with Love's notifying Cloud of any potential repairs that needed to be made and Cloud notifying the subcontractor. Cloud also argued below that it could not be liable for Peterson's injuries because Cloud could not have foreseen that the trailer floor would become covered with water, creating a hazard. Peterson, however, designated evidence tending to show that Cloud had been made aware of water-related issues, which had been attributed to heavy use that had created the need for a larger restroom trailer.

[19] Again, we express no opinion as to whether the designated evidence is sufficient to prove that Cloud owed or breached a duty to Peterson but we conclude that Peterson's designated evidence was sufficient to create an issue of material fact on the question of whether Cloud acted negligently. See Hughley, 15 N.E.3d at 1004. We therefore also reverse the trial court's order granting summary judgment to Cloud.

[20] The judgment of the trial court is reversed and the matter remanded to the trial court for further proceedings.

FOOTNOTES

1.   There was no other railing to assist individuals on the steps beyond the handle that was attached to the trailer.

2.   Abrogated on other grounds by Isgrig v. Trustees of Indiana University, 256 N.E.3d 1238 (Ind. 2025).

3.   Love's argues that it was entitled to summary judgment because even if water was present at the time of Peterson's fall, the water created an obvious danger to Peterson, who should have been reasonably expected to take proper precaution to guard against potential harm. However, a question of material fact remains as to whether Peterson exercised proper precaution, as is evidenced by the designated evidence indicating that Peterson fell and was injured despite having allegedly taken special care to avoid slipping and falling.

Bradford, Judge.

Judges May and Mathias concur. May, J., and Mathias, J., concur.