Community Foundation of Northwest Indiana, Inc. d/b/a St. Catherine Hospital, Appellant-Defendant v. Tina A. Battle, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] In this interlocutory appeal, Community Foundation of Northwest Indiana, Inc. d/b/a St. Catherine Hospital (“Hospital”) appeals the trial court's denial of its unopposed motion for summary judgment. The Hospital argues its designated evidence shows there is no genuine issue of material fact and it is entitled to judgment as a matter of law. We affirm.

Facts and Procedural History

[2] On March 30, 2021, Tina A. Battle drove to the Hospital to visit the gift shop and attend a medical appointment. She was leaving the Hospital and walking at a “normal pace” to her parked car when “[i]t felt like [her foot] got caught on ․ the tip of the block ․ of the sidewalk.” Appellant's App. Vol. 2 at 48, 63. She fell forward “in an awkward position” and landed on her hands and knees. Id. at 48. No one witnessed the fall. Battle got up and walked away, but she was in pain and her knee started to swell. On her doctor's advice, she went to the emergency room that day.

[3] Seventeen months later, Battle sued the Hospital for injuries sustained to her knees, hands, and feet after she “tripped over the uneven pavement just outside of the main entrance” of the Hospital. Id. at 16. She alleged the Hospital was negligent for failing to provide a reasonably safe area for business invitees to enter and exit the premises; knew or should have known a dangerous condition existed on its premises; and failed to exercise reasonable care to discover and protect invitees from unreasonable risk of harm and danger. The Hospital answered and admitted it owed a duty to business invitees such as Battle but otherwise denied the allegations in the complaint.

[4] Discovery began, and the Hospital deposed Battle in early 2023. As to the pavement condition, Battle explained she was familiar with the hospital grounds because she attended physical therapy and other medical appointments there. She typically parked her car in the same area, so she estimated she had walked the area in which she fell “[h]undreds of times” before the accident. Id. at 58. Before that day, she had never had difficulty walking in that area or noticed uneven pavement. The day after her fall, she returned to the area to take photographs of the sidewalk. She stood atop the pavement and observed “it wasn't balanced” and she felt an “unevenness” under her feet. Id. Regarding the Hospital's knowledge of the condition, she was unaware of anyone else who had fallen in that area or if the Hospital knew a dangerous condition existed at the time of her fall. See id. at 66.

[5] On February 26, 2025, the Hospital moved for summary judgment, arguing: (a) there was no evidence the Hospital had actual or constructive knowledge of a hazardous condition involving the sidewalk where Battle fell; (b) an uneven sidewalk does not, as a matter of law, pose an unreasonable risk of harm to an invitee; and (c) the mere fact of a fall does not establish negligence. In support of its motion, it designated Battle's complaint; the full transcript of Battle's deposition; and an affidavit of Kimberly Harrison, the Hospital's Director of Quality Assurance. Harrison averred:

4. Through my position, I am aware that St. Catherine Hospital did not have notice of an issue with any portion of the sidewalk on the premises in the area where [Battle] claims to have fallen prior to March 30, 2021.

5. Additionally, St. Catherine Hospital had no knowledge of any falls occurring at the area of sidewalk subject to ․ Battle's complaint occurring prior to March 30, 2021.

Id. at 73. Battle did not respond to the summary judgment motion.

[6] The trial court held a summary judgment hearing on July 25. The Hospital appeared by its attorneys, and Battle appeared pro se. Battle explained she did not respond to the Hospital's summary judgment motion because she had fired her attorney and did not receive the motion until March 18.¹ She tried to show the trial court photographs she took of the sidewalk the day after her fall. The Hospital objected, pointing out Battle had not timely responded to summary judgment or designated any evidentiary material, and the trial court sustained the objection. Battle had no further argument.

[7] At the end of the hearing, the trial court orally denied the Hospital's motion for summary judgment and entered its written denial the same day.² On the Hospital's request, the trial court certified the order for interlocutory appeal. This Court accepted jurisdiction on September 25, 2025.

Standard of Review

[8] We first note Battle has not filed an appellate brief.³ When an appellee has not filed a brief, “we need not undertake the burden of developing an argument on the appellee's behalf.” Trinity Homes, LLC v. Fang, 848 N.E.2d 1065, 1068 (Ind. 2006). “[W]e will reverse the trial court's judgment if the appellant's brief presents a case of prima facie error.” Id. Prima facie error is error “at first sight, on first appearance, or on the face of it.” Id. (citation omitted). This is a “less stringent standard of review,” but we are still obligated to “correctly apply the law to the facts in the record in order to determine whether reversal is required.” Hahn-Weisz v. Johnson, 189 N.E.3d 1136, 1141 (Ind. Ct. App. 2022).

[9] We review a trial court's summary judgment decision de novo, applying the same standard as the trial court. U.S. Automatic Sprinkler Corp. v. Erie Ins. Exch., 204 N.E.3d 215, 220 (Ind. 2023). In doing so, we consider only the evidence designated to the trial court and draw all reasonable inferences in the nonmovant's favor. Ebert v. Ill. Cas. Co., 188 N.E.3d 858, 863 (Ind. 2022). A party seeking summary judgment must establish that “the designated evidentiary matter shows ․ there is no genuine issue as to any material fact and ․ the moving party is entitled to a judgment as a matter of law.” T.R. 56(C). “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, or if the undisputed material facts support conflicting reasonable inferences.” Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014) (quoting Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009)). It is not enough for the moving party to merely show the party carrying the burden of proof lacks evidence on a necessary element; instead, the moving party must affirmatively negate an opponent's claim. Id.; see also Isgrig v. Trs. of Ind. Univ., 256 N.E.3d 1238, 1244 (Ind. 2025) (“A defendant is entitled to summary judgment by demonstrating that the undisputed material facts negate at least one of the elements of the plaintiff's claim.”) (citation omitted).

[10] If the movant meets its initial burden of demonstrating the absence of any genuine issue of fact as to a determinative issue, the burden shifts to the nonmovant to come forward with contrary evidence showing an issue for the trier of fact. See Hughley, 15 N.E.3d at 1003. The non-moving party, however, cannot “rest upon the mere allegations or denials of his pleading.” T.R. 56(E). Likewise, “speculation is not enough to overcome summary judgment.” Cosme v. Clark, 232 N.E.3d 1141, 1150 (Ind. 2024) (citation omitted). Instead, the party opposing summary judgment must, by affidavit or other evidence, “set forth specific facts showing that there is a genuine issue for trial.” T.R. 56(E).

The Hospital failed to meet its burden on summary judgment.

A. Premises liability

[11] Battle's claim was based on premises liability. To recover under a theory of premises liability sounding in negligence, the plaintiff must prove three elements: (1) a duty owed to the plaintiff, (2) the defendant's breach of that duty, and (3) the breach proximately caused the plaintiff's damages. Isgrig, 256 N.E.3d at 1244.

[12] Battle's status on the land at the time of her fall was as an invitee.⁴ A landowner owes invitees the highest level of duty: to exercise reasonable care for their protection while they are on the landowner's premises. Id. at 1245. Over thirty years ago, the Indiana Supreme Court adopted the following language from the Restatement (Second) of Torts to further describe a landowner's duty to an invitee:

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)). The duty to exercise reasonable care to invitees “includes the duty to reasonably inspect and maintain the premises” and fixtures on the premises. Isgrig, 256 N.E.3d at 1251.

[13] Although we hold landowners to the highest standard when it comes to invitees, “the landowner is not absolutely liable for, or an insurer of, the invitee's safety.” Id. at 1245 (internal quotation and citation omitted). Because a landowner does not insure the invitee's safety, the landowner must have actual or constructive knowledge of the danger before liability may be imposed. Schulz v. Kroger Co., 963 N.E.2d 1141, 1144 (Ind. Ct. App. 2012). A landowner has constructive knowledge of a dangerous condition if it “has existed for such a length of time and under such circumstances that it would have been discovered in time to have prevented injury if the [premises owner], his agents[,] or employees had used ordinary care.” Id. (quotation and citation omitted).

B. Knowledge

[14] Under our established law, the Hospital owed Battle a duty to exercise reasonable care to protect her from dangerous conditions while she was on the hospital grounds, including the duty to reasonably inspect and maintain the premises. But the Hospital was responsible for protecting Battle only from dangerous conditions of which it had actual or constructive knowledge. To prevail on summary judgment by asserting a lack of knowledge, the undisputed material facts must show the Hospital had no knowledge of—or by the exercise of reasonable care could not have discovered—the uneven sidewalk.

[15] To affirmatively negate Battle's claim, the Hospital designated Battle's complaint, her entire deposition testimony, and Harrison's affidavit. Harrison averred the Hospital “did not have notice of an issue” with the sidewalk before Battle's fall and “had no knowledge of” prior falls in that area. Appellant's App. Vol. 2 at 73. On appeal, the Hospital summarily concludes—without citation to authority—this affidavit “suffices to establish that the Hospital lacked any actual or constructive notice of any defect or hazardous condition in the sidewalk.” Appellant's Br. at 15.⁵

[16] Harrison's affidavit establishes the Hospital had no actual knowledge of a dangerous condition on the premises. See Schultz, 963 N.E.2d at 1144 (holding affidavit of store employee that neither she nor other employees had notice of a foreign substance spilled on the store's floor before the plaintiff's fall established the defendant store had no actual knowledge of a hazardous condition).

[17] But Harrison's affidavit fails to establish the Hospital lacked constructive knowledge of the uneven sidewalk. That is, the affidavit does not answer the question of whether, by the exercise of reasonable care, the Hospital could have discovered the hazardous condition in time to prevent injury. See Rector v. Oliver, 809 N.E.2d 887, 893–94 (Ind. Ct. App. 2004) (holding designated evidence of video store owner that she was unaware of any problems with a light fixture that fell on a customer failed to establish, as a matter of law, that she could not have discovered the defect with the exercise of reasonable care), trans. denied; see also Converse v. Elkhart Gen. Hosp., Inc., 120 N.E.3d 621, 626–27 (Ind. Ct. App. 2019) (discussing how the defendant hospital's designated evidence failed to establish it lacked actual or constructive knowledge of loose landscaping rock on the sidewalk that caused the plaintiff to slip and fall).

[18] To affirmatively negate a plaintiff's premises liability claim based on a lack of constructive knowledge, Indiana case law has required more than what the Hospital designated here. As this Court has noted, Schulz presents “a good example of a defendant meeting Indiana's burden on summary judgment” as to actual and constructive knowledge. Converse, 120 N.E.3d at 627. In Schulz, this Court held the affidavit of a store employee explaining (a) the store's procedures for monitoring and inspecting the premises for hazards, and (b) the brief length of time between the employee's last inspection and the plaintiff's slip and fall on a foreign substance on the floor, established the defendant store had no constructive knowledge of the hazardous condition. 963 N.E.2d at 1145. The Schulz Court observed:

It is evident from the designated evidence before us that the window of time between a [store] employee being present in the area where [the plaintiff] fell and [the plaintiff's] fall was ten minutes at most. Ten minutes prior to her fall, the floor was clean and dry. Short of imposing a strict liability standard or mandating an employee's presence in every aisle at all times, we conclude that there is no genuine issue of fact in the case before us that [the store] did not have constructive knowledge of the hazardous condition.

Id.

[19] In another case, Gasser Chair Co., Inc. v. Nordengreen, a casino patron was injured when the gas cylinder in an adjustable-height chair she sat on failed, the chair collapsed, and it caught on her leg. 991 N.E.2d 122, 124 (Ind. Ct. App. 2013). The casino designated evidence that it inspected the chairs daily; there were no reported problems with the chair plaintiff used; the manufacturer had not warned the casino of problems with the chairs; when a gas cylinder fails, it usually fails slowly rather than collapses suddenly; and although one-half of one percent of the 3,300 chairs at the casino had “issues” with the same chair part, none caused injury to patrons. Id. at 127. On that evidence, this Court determined the casino established a lack of constructive knowledge the chair was a dangerous condition and affirmed summary judgment for the casino. Id. See also Indianapolis Airport Auth. v. Kennedy, No. 24A-CT-865, at *3 (Ind. Ct. App. Sep. 25, 2024) (mem.) (defendant airport established it had no constructive knowledge of a defective bathroom door hinge and was entitled to summary judgment where the designated evidence showed its staff inspected restrooms multiple times daily and conducted nightly maintenance checks, including of doors and hinges, and no issues with hinges were revealed or previously reported).

[20] These cases show a defendant can meet its summary judgment burden based on a lack of constructive knowledge if its designated evidence speaks to the level of attention and care exercised by the defendant to discover such dangerous conditions. This evidence may include (but is not limited to) inspection and maintenance procedures, the time between the last inspection and the injury, or other details about the construction or maintenance of the injuring instrumentality. This is consistent with our understanding of when knowledge is chargeable to a landowner because “the condition has existed for such a length of time and under such circumstances” that, in the exercise of ordinary care, it would have been discovered in time to have prevented injury. Schulz, 963 N.E.2d at 1144. Harrison's affidavit—stating the Hospital had no notice of issues with the sidewalk and no knowledge of prior falls in that area—does not meet this standard because it does not address the level of care the Hospital exercised to discover hazards on its premises. And the Hospital designated no other evidence to show that in the exercise of ordinary care, it could not have discovered an uneven sidewalk just outside its main entrance in time to have prevented Battle's injury.  ⁶ We cannot say, as a matter of law, the designated evidence proves the Hospital, in the exercise of reasonable care, could not have discovered the dangerous condition.

C. Dangerous condition

[21] Beyond the knowledge issue, the Hospital argues two other principles to justify summary judgment in its favor. First, the Hospital claims Battle “did not identify what she fell on besides the sidewalk itself” and negligence cannot be inferred from the mere fact of an accident. Appellant's Br. at 16.

[22] “Generally, Indiana courts require some evidence of what caused a plaintiff's fall in order to survive summary judgment in a slip-and-fall case.” Hale v. SS Liquors, Inc., 956 N.E.2d 1189, 1194 (Ind. Ct. App. 2011). “The mere allegation of a fall is insufficient to establish negligence.” Al-Sinan v. Blackbird Farms Apartments, LLC, 139 N.E.3d 224, 226 (Ind. Ct. App. 2019). As such, a defendant in a slip-and-fall case will be entitled to summary judgment if the plaintiff resorts to mere speculation or conjecture to identify the hazardous condition. See, e.g., Taylor v. Cmty. Hosps. of Ind., Inc., 949 N.E.2d 361, 366 (Ind. Ct. App. 2011) (holding defendant hospital was entitled to summary judgment in a slip-and-fall case where the plaintiff could not identify why she fell and relied on conjecture that the floor must have been wet or slippery at the time).

[23] But this is not a case in which the plaintiff was unsure how she fell. In her complaint, Battle alleged she “tripped over the uneven pavement” just outside the Hospital's main entrance. Appellant's App. Vol. 2 at 16. And rather than affirmatively negate this claim, the Hospital designated Battle's entire deposition testimony, in which she testified the “sidewalk was not balanced” and she was “100 percent” positive that was the condition that caused her fall. Id. at 57. Battle further testified she returned to the scene the day after her fall, stood on top of the sidewalk, and noticed it “wasn't balanced,” her feet “weren't leveled,” and she felt an “unevenness.” Id. at 58. Battle's deposition testimony is not based on inferential speculation alone, and there was enough evidence of what allegedly caused Battle's fall to survive summary judgment. See Al-Sinan, 139 N.E.3d at 227 (holding plaintiff's slip-and-fall claim did not resort to inferential speculation alone where she testified in a deposition that the front entry to her building appeared slippery and icy and despite trying to avoid the hazardous condition, she slipped on icy conditions as soon as she stepped on the ramp).

[24] In a related argument, the Hospital argues “there was nothing about the sidewalk that posed an unreasonable risk of harm” to Battle, and faults Battle for failing to designate evidence “showing that anything beyond the normal condition of the sidewalk itself caused her fall.” Appellant's Br. at 17, 18.

[25] A landowner has a duty to protect invitees only from a condition that poses an “unreasonable” risk of harm to them. Hale, 956 N.E.2d at 1192 (quoting Restatement (Second) of Torts § 343). This standard “implicitly recognizes that some activities have a risk of harm that is ‘reasonable’ that a landowner is not required to protect the invitee against.” Id. As the Hospital points out, this Court has at times held that as a matter of law, common items do not pose an unreasonable risk of harm to invitees. See, e.g., id. (holding the defendant hotel was entitled to summary judgment where there was no evidence the bathtub in which the plaintiff slipped and fell was unreasonably safe as compared to bathtubs generally where the plaintiff stated the bathtub was clean and he could not specify anything about the tub that might have caused his fall, other than it being slippery).

[26] But again, Battle did not allege she was injured by a sidewalk in “normal condition.” Appellant's Br. at 18. She alleged the sidewalk was uneven, unbalanced, and/or unlevel, causing her injury. The Hospital designated no evidence to refute that claim, instead designating Battle's testimony describing the allegedly dangerous and defective sidewalk. The Hospital's designated evidence therefore did not affirmatively negate Battle's claim the sidewalk posed an unreasonable risk of harm to invitees. Whether the sidewalk was so uneven as to pose an “unreasonable” risk of harm to invitees remains a genuine issue of material fact to be decided by the trier of fact.

[27] Summary judgment is “rarely appropriate in negligence cases” in part due to their fact-sensitive nature. Kramer v. Cath. Charities of Diocese of Fort Wayne-South Bend, Inc., 32 N.E.3d 227, 231 (Ind. 2015). And “Indiana consciously errs 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. The Hospital's designated evidence fails to demonstrate the undisputed material facts negate at least one of the elements of Battle's claim. Accordingly, the Hospital has failed to meet the “relatively high bar” to establish entitlement to summary judgment in its favor. Id.

Conclusion

[28] The trial court did not err in denying the Hospital's unopposed motion for summary judgment.

[29] Affirmed.

FOOTNOTES

1.   By rule, Battle's response was due thirty days after service of the Hospital's motion, or March 28, 2025. See Ind. Trial Rule 56(C).

2.   The trial court explained its reasoning at the hearing: “In our system of justice in the state, motions for summary judgment are granted but are rarely granted unless there's a definitive reason ․ that they should be granted. So, I'm going to deny the motion for summary judgment under that premise.” Tr. Vol. 2 at 8. It entered no written findings and conclusions but was not required to do so.

3.   Battle submitted to the Clerk of the Appellate Courts a document styled “Brief of Appellant,” which was late and defective due to missing, incomplete, insufficient, or prohibited items in violation of our appellate rules. The Clerk marked the document “received” (but not filed) and issued a notice of defect to Battle. See Ind. Appellate Rule 23(D). Battle did not timely file a corrected brief or move to file a belated brief, and accordingly we do not consider her submitted materials.

4.   A person's status on the land—as invitee, licensee, or trespasser—determines the duty a landowner owes her. Id. at 1245. Invitees include business visitors who have been invited to enter and remain on another's land for a purpose directly or indirectly connected to business with the landowner. Id. The Hospital does not dispute Battle was its business invitee.

5.   On appeal, the Hospital analyzes no case law concerning actual or constructive knowledge. In its summary judgment motion, the Hospital compared the facts of this case exclusively to those in Griffin v. Menard, Inc., 175 N.E.3d 811, 813 (Ind. 2021), abrogated by Isgrig, 256 N.E.3d at 1249–51 (departing from the Griffin Court's application of res ipsa loquitur in premises liability cases). See Appellant's App. Vol. 2 at 30–33.

6.   In its summary judgment motion, the Hospital also pointed to Battle's deposition testimony that she had walked the area hundreds of times before the accident but had never had difficulty walking or noticed uneven pavement. See Appellant's App. Vol. 2 at 33. The Hospital does not renew this argument on appeal. But even so, the fact no one had fallen on the sidewalk until Battle's accident does not alone establish the Hospital could not have discovered, in the exercise of ordinary care, a dangerous condition on its premises. See, e.g., Converse, 120 N.E.3d at 624, 627 (holding defendant hospital failed to establish a lack of constructive knowledge of dangerous condition caused by landscaping rock on a sidewalk, even where the designated evidence showed the plaintiff was a regular hospital visitor and walked in that area two to three times per week).

Kenworthy, Judge.

Tavitas, C.J., and Bailey, J., concur.