FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEES:

JAMES E. AYERS BRUCE B. PAUL

Wernle, Ristine & Ayers Stites & Harbison, PLLC

Crawfordville, Indiana Jeffersonville, Indiana

IN THE

COURT OF APPEALS OF INDIANA

JOHN KADER, )

)

Appellant, )

)

vs. ) No. 33A01-1302-CT-72

)

STATE OF INDIANA, DEPARTMENT OF )

CORRECTION, AND THE GEO GROUP, INC., )

)

Appellees. )

APPEAL FROM THE HENRY CIRCUIT COURT

The Honorable Kit C. Dean Crane, Judge

Cause No. 33C02-0909-CT-19

December 11, 2013

OPINION - FOR PUBLICATION

BAILEY, Judge
2

Case Summary

In a textbook example of the differences between the Indiana and federal summary 

judgment standards, John Kader (“Kader”), an inmate with the Indiana Department of

Correction (“the Department”), appeals the trial court’s entry of summary judgment against 

him in his negligence suit against The GEO Group, Inc. (“GEO”), the State of Indiana (“the 

State”), the Department (collectively, “the Defendants”).

We affirm in part, reverse in part, and remand for further proceedings.

Issues

Kader raises two issues for our review, which we restate as:

I. Whether the trial court abused its discretion when it struck an affidavit 

Kader submitted in opposition to GEO’s motion for summary 

judgment; and

II. Whether the trial court erred when it entered summary judgment against 

Kader when it concluded that:

A. GEO’s duty of care to Kader was that of a landowner to an invitee, and 

to the extent GEO had not been notified of any defects with the floor 

grates, its duty toward Kader did not include remedying any such 

defects;

B. Kader was contributorily negligent because he did not use a wheelchair 

and was walking without assistance of a cane;

C. Kader failed to produce competent evidence that falling on the floor 

grates was the medical cause of the injuries of which he complains; and

D. GEO had no duty of care as to Kader’s medical treatment.

Facts and Procedural History

During September 2007, Kader was an inmate at the New Castle Correctional Facility 

(“the facility”). The facility was one of several Indiana correctional institutions owned by the 
3

State and controlled by the Department. GEO, a private corporation specializing in the 

operation and management of prisons, operated the facility under a contract with the 

Department.

Prior to and throughout September 2007, Kader suffered from what he described as 

“drop foot” in his right leg, which caused him difficulty in lifting his right foot off the ground 

while walking. At some point before September 2007, Kader had also suffered a head injury.

On September 29, 2007, Kader fell while walking through the facility and struck his 

head. Kader attributed his fall to one of his feet catching on an uneven floor grate. Kader 

was transported to Henry County Hospital for treatment; from there, he was subsequently 

transported to Wishard Hospital in Indianapolis for treatment of symptoms related to a head 

injury. Physicians at Wishard Hospital recommended additional diagnostic and follow-up 

treatment for Kader’s head injury; neither GEO nor the Department took action on this 

recommendation.

On September 29, 2009, Kader filed suit against the State, the Department, and GEO, 

alleging negligent supervision, negligent installation of the floor grates, and negligence in 

providing medical care after Kader’s return to the facility from Wishard Hospital.

On June 18, 2012, after depositions had been conducted of Kader and Virgil Ballenger 

(“Ballenger”), a former correctional officer employed by GEO at the facility, the Defendants 

jointly filed a motion for summary judgment against Kader.

On July 23, 2012, Kader submitted his response to the Defendants’ motion. In support 

of his response, Kader designated his deposition, Ballenger’s deposition, and the affidavit of 
4

LaDarryl Holland (“Holland”), an inmate at the facility who was responsible for cleaning the 

hallway in which Kader fell. On August 9, 2012, the Defendants moved to strike Holland’s 

affidavit.

On September 4, 2012, the trial court granted the motion to strike Holland’s affidavit 

and entered summary judgment against Kader; the court’s order included findings and 

conclusions setting forth its rationale.

On September 7, 2012, Kader filed a motion captioned as one seeking reconsideration 

of the entry of summary judgment. In it, Kader noted that when the trial court entered 

summary judgment, it erroneously disregarded from consideration portions of Kader’s 

timely-filed responsive briefing. The Defendants’ responsive briefing acknowledged the 

error, but nonetheless continued to argue that summary judgment against Kader was proper.

On January 14, 2013, the trial court again entered summary judgment against Kader.1

This appeal followed.

Discussion and Decision

Holland’s Affidavit

In his first designated issue on appeal, Kader contends that the trial court abused its 

discretion when it struck LaDarryl Holland’s affidavit, which Kader had designated as 

evidentiary material in his opposition to the motion for summary judgment.

A trial court has broad discretion to rule upon evidentiary matters. Kroger Co. v. 

Plonski, 930 N.E.2d 1, 5 (Ind. 2010). Such discretion “extends to rulings on motions to 

 

1 None of the defendants contend that Kader’s motion or this appeal were untimely filed.
5

strike affidavits on the grounds that they fail to comply with the summary judgment rules.” 

Id. (citations and quotations omitted).

When submitting or defending against a motion for summary judgment, a party shall 

serve supporting affidavits and other designated evidentiary materials. Ind. Trial Rule 56(C). 

Such affidavits “shall be made on personal knowledge, shall set forth such facts as would be 

admissible in evidence, and shall show affirmatively that the affiant is competent to testify to 

the matters stated therein.” T.R. 56(E).

Mere assertions in an affidavit of conclusions of law or opinions will not 

suffice. City of Indianapolis v. Duffitt, 929 N.E.2d 231, 239 (Ind. Ct. App.

2010). “An affidavit need not contain an explicit recital of personal 

knowledge when it can be reasonably inferred from its contents that the 

material parts thereof are within the affiant’s personal knowledge.” Decker v. 

Zengler, 883 N.E.2d 839, 844 (Ind. Ct. App. 2008), trans. denied.

DeLage Landen Fin. Servs., Inc. v. Cmty. Mental Health Ctr., Inc., 965 N.E.2d 693, 701 (Ind. 

Ct. App. 2012), trans. denied.

“[A]n affidavit that would be inadmissible at trial may be considered at the summary 

judgment stage of the proceedings if the substance of the affidavit would be admissible in 

another form at trial.” Reeder v. Harper, 788 N.E.2d 1236, 1241-42 (Ind. 2003). The 

substance of the affidavit controls, not the form. Cotton v. Auto-Owners Ins. Co., 937 

N.E.2d 414, 418 (Ind. Ct. App. 2010) (citing Reeder, 788 N.E.2d at 1240-41).

In DeLage, this Court found no abuse of discretion where a trial court denied a 

defendant’s motion to strike an affidavit submitted by a plaintiff in support of the plaintiff’s 

motion for summary judgment in a contract case. DeLage, 965 N.E.2d at 701. In reaching 

that conclusion, we observed that the plaintiff’s affidavit included “a specific recitation that 
6

[affiant had] personal knowledge of the facts related therein,” and that other averments 

demonstrated familiarity with the contract at issue and its underlying accounts. Id. Thus, the 

defendant could not overcome summary judgment merely by seeking to discredit the 

averments on appeal. Id. 

Here, GEO contended that Holland’s affidavit failed to meet the requirements of Trial 

Rule 56(E). GEO argued that the affidavit was not credible because it included averments 

that were specifically contradicted by evidence and affidavits from employees of GEO and 

the Department. GEO further claimed that Holland’s averments failed to demonstrate 

personal knowledge of the facts of the case. The trial court agreed, and struck the affidavit.

After averring competence to testify, Holland’s affidavit states:

2. I was an inmate at [the facility] operated by the GEO Group, Inc. in 

2007, and at the time of Mr. Kader’s fall, and have personal knowledge 

regarding some of the facts of this case.

3. At the time of Mr. Kader’s fall ... I was the inmate clerk in charge of 

cleaning the hallway where the floor grate in question was located, and I was 

personally present when Mr. Kader fell.

4. The gratings in the hallway were aluminum and had become warped 

and could not be positioned to be level with one another and caused a tripping 

hazard. As installed there was not a level surface. Some edges were above 

floor level, and that created the hazard. Over a period of at least six months 

before Mr. Kader’s injury, this hazard was well known to Staff in writing and 

by showing and telling. Being the clerk at the time, I personally contacted 

Caseworker Sloss, Caseworker Kim Lewis, Lt. Lucas, Major Thompson, and 

Superintendent Ritley. We discussed that it should either be filled in or at least 

the grating removed. The caseworkers told me they had put in several workorders for maintenance. The others indicated that the problem would be fixed.

5. During my stay at [the facility] no steps were taken to correct or repair 

this problem even after Mr. Kader was injured.
7

6. On the day Mr. Kader fell I was working as the clerk and Ms. Clark was 

the officer in charge. Mr. Kader was crossing the grating at a walking pace 

when he tripped over the protruding edge of the grate and fell head first, 

striking his head on the corner of the lower windowsill.

7. Ms. Clark, who was at the outside door, immediately stepped in to 

examine Mr. Kader, who was bleeding from the head. She remained with him, 

cleaning the blood away, and comforting him until medical personnel arrived 

and took him away.

(Appellant’s App’x at 94-95.)

In response to Holland’s affidavit—and specifically the portions of paragraph four 

that discuss Holland’s efforts to notify prison staff of the danger posed by the floor grates—

GEO produced an affidavit indicating that members of the staff to whom Holland’s 

averments referred were either not employed at the prison at the time or were never employed 

at the prison. In its motion to strike the affidavit, GEO further argued that much of what 

Holland stated concerning his interactions with prison staff amounted to hearsay that might 

be inadmissible at trial, and that the rest of the affidavit was inadmissible either because 

Holland’s claims of personal knowledge were insufficient or because they amounted to legal 

conclusions to which Holland could not properly speak. 

The trial court was correct to strike some portions of the affidavit; other portions, 

however, are not inadmissible and were not properly stricken. Portions of Holland’s affidavit 

relate information of which he would reasonably be expected to have personal knowledge in 

his position as an inmate clerk present in the hallway when and where Kader fell. See

DeLage, 965 N.E.2d at 701. Specifically, Holland’s averments concerning the condition of 

the floor grates—that is, whether they were uneven and protruded upward—and where Kader 
8

was when he fell were admissible, and it was error to strike these portions of the affidavit. 

So, too, was it error to strike Holland’s averment that he had submitted written requests and 

spoken with prison officials concerning the condition of the floor grates. But see Price v. 

Freeland, 832 N.E.2d 1036, 1041-42 (Ind. Ct. App. 2005) (holding that the trial court erred 

when it did not strike from an affidavit statements concerning court filings, where copies of 

the claimed court filings were not attached in support of the affidavit).

Holland’s averment that prison officials had assured him that the condition would be 

remedied was inadmissible and properly stricken. See Ind. Evidence Rule 801 (defining 

hearsay). Too, Holland’s averment that the grates were a tripping hazard because their edges 

protruded, leading to Kader “tripp[ing] over the protruding edge of the grate,” (Appellant’s 

App’x at 95) is inadmissible because it asserts a personal opinion or legal conclusion that an 

unremedied tripping hazard existed, and that hazard was the cause of Kader’s fall.

To the extent the trial court struck portions of the affidavit that were admissible, it 

abused its discretion, and we therefore reverse the order to the extent it strikes the admissible 

portions of the affidavit.

Summary Judgment

We turn now to Kader’s second contention on appeal, namely, that the trial court erred 

when it granted the Defendants’ motion for summary judgment.

A trial court’s entry of summary judgment comes to this court “clothed with a 

presumption of validity.” Bunch v. Tiwari, 711 N.E.2d 844, 848 (Ind. Ct. App. 1999) 

(citations and quotations omitted). Nevertheless, “we carefully assess the trial court’s 
9

decision to ensure that the nonmovant was not improperly denied its day in court.” Colonial 

Penn Ins. Co. v. Guzorek, 690 N.E.2d 664, 667 (Ind. 1997).

Thus, we review appeals from the entry of summary judgment de novo, and are bound 

by the same standard as the trial court. Wilson v. Isaacs, 929 N.E.2d 200, 202-03 (Ind. 

2010). Summary judgment “shall be rendered forthwith if the designated evidentiary matter 

shows that there is no issue as to any material fact and that the moving party is entitled to a 

judgment as a matter of law.” T.R. 56(C). Any doubt as to the existence of a factual issue 

should be resolved against the party moving for summary judgment, and where designated 

evidentiary materials may give rise to reasonable conflicting inferences, such inferences shall 

be drawn in favor of the non-movant. Auto-Owners Inc. Co. v. Harvey, 842 N.E.2d 1279, 

1289 (Ind. 2006). “The court must accept as true those facts alleged by the nonmoving party 

and resolve all doubts against the moving party.’” Id. (citations and quotations omitted).

In summary judgment proceedings, the initial burden is on the movant to “designate 

sufficient evidence to foreclose the nonmovant’s reasonable inferences and eliminate any 

genuine factual issues.” Butler v. City of Peru, 733 N.E.2d 912, 915 (Ind. 2000). It is only 

after the movant has met this burden that “the burden shifts to the nonmovant to make a 

showing sufficient to establish the existence of a genuine issue for trial on each challenged 

element of the cause of action.” Id. This aspect of summary judgment procedure in Indiana 

differs significantly from the federal procedure.2

 

2 Federal procedure requires only that the movant “inform the court of the basis of the motion and identify 

relevant portions of the record ‘which it believes demonstrate the absence of a genuine issue of material fact.’”

Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994) (quoting Celotex Corp. 
10

The summary judgment order in this case was entered upon a claim of negligence.

Summary judgment is rarely appropriate in negligence cases. Kennedy v. Guess, Inc., 806 

N.E.2d 776, 783 (Ind. 2004). This is because “[i]ssues of negligence, contributory 

negligence, causation, and reasonable care are more appropriately left for the determination 

of a trier of fact.” Florio v. Tilley, 875 N.E.2d 253, 256 (Ind. Ct. App. 2007), trans. denied. 

Questions of law, like whether a defendant had a duty of care as to a plaintiff or whether 

certain facts constitute proximate cause, may be appropriate for summary judgment. See, 

e.g., Plonski, 930 N.E.2d at 9; Florio, 875 N.E.2d at 256. So, too, is the defense of 

contributory negligence (as applicable to government defendants) “generally a question of 

fact ... not appropriate for summary judgment ‘if there are conflicting factual inferences.’” 

Funston v. Schl. Town of Munster, 849 N.E.2d 595, 599 (Ind. 2006). And while a trial 

court’s annunciation of findings of fact and conclusions of law on such matters may aid our 

review and reveal the reasoning of the trial court, they are not required and are not binding 

upon appeal. New Albany Historic Pres. Comm’n v. Bradford Realty, Inc., 965 N.E.2d 79, 

84 (Ind. Ct. App. 2012).

Here, the trial court assessed the credibility of Kader’s statements regarding the 

condition of the floor grates on which he fell, comparing Kader’s statements to those of 

employees or former employees at the facility. The court also found that Kader’s walking 

without a cane or wheelchair amounted to contributory negligence.

 

v. Catrett, 477 U.S. 317, 326, 106 S. Ct. 2548, 2553 (1986)). The movant having met this burden, the 

nonmovant must bear the burden to show the existence of a genuine issue of material fact on each challenged 

element upon which the nonmovant must bear the burden of proof at trial. Id.
11

Yet the role of the trial court at summary judgment is not to act as a trier of fact, but 

rather to determine whether the movant established, prima facie, either that there is 

insufficient evidence to proceed to trial, or that the movant is otherwise entitled to judgment 

as a matter of law. Witness credibility and the relative apparent weight of evidence are not 

relevant considerations at summary judgment. Galligan v. Galligan, 741 N.E.2d 1217, 1227 

(Ind. 2001). Assessments of credibility and weight are the province of the fact-finder at trial, 

not the trial court at summary judgment. See Miller v. Bernard, 957 N.E.2d 685, 699 (Ind. 

Ct. App. 2011) (noting that “[i]t is properly the role of a fact-finder to determine ... 

intentions and actions”). And as to contributory negligence, the trial court may enter 

summary judgment on such matters “only when the court can say that no reasonable person 

would have acted as the plaintiff did under the circumstances,” or, only if a plaintiff’s (here, 

Kader’s) negligence was “‘so clear and palpable that no verdict could make it otherwise.’” 

Templeton v. City of Hammond, 679 N.E.2d 1368, 1373 (Ind. Ct. App. 1997).

Here, there was contradictory evidence in the form of Kader’s and Ballanger’s 

deposition testimony concerning the condition of the floor grates. There was also evidence in 

the form of Kader’s testimony that though he had been provided a wheelchair and a cane, he 

was regularly able to navigate the prison environment without using those aids and that his 

need for them was unpredictable. The trial court’s assessment of the credibility of the 

testimony and factual determination that Kader’s conduct was contributorily negligent, 

despite evidence that gave rise to contrary inferences, were both in error.3

 

3 This analysis is only strengthened by inclusion of the admissible portions of Holland’s affidavit. See
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Nature of GEO’s Duty of Care

We turn next to the question of what duty of care GEO, a private contractor hired by 

the State to manage a Department prison, owed to Kader, a prisoner. GEO contends, and the 

trial court agreed, that Kader was simply an invitee. 

“A plaintiff seeking damages for negligence must establish (1) a duty owed to the 

plaintiff by the defendant, (2) a breach of the duty, and (3) an injury proximately caused by 

the breach of duty.” Pfenning v. Lineman, 947 N.E.2d 392, 398 (Ind. 2011). “When there is 

no genuine issue of material fact and any one of these elements is clearly absent, summary 

judgment is appropriate.” Id. at 403.

In assessing GEO’s duty of care, the trial court determined that Kader was an invitee 

and that, because there had been no evidence presented of prior reporting or any other 

knowledge on the part of GEO regarding problems with the grating upon which Kader fell, 

GEO could not be liable toward Kader. The court also found that Kader was contributorily 

negligent for his injuries for failure to use a cane and/or wheelchair with which he had been 

provided due to his medical conditions.

Our research has not revealed that Indiana courts have applied to cases of inmate 

injury the trespasser-licensee-invitee distinctions generally applicable in premises liability 

cases. As our supreme court has previously announced, the duty of a custodian of inmates is 

“to exercise reasonable care to preserve the life, heath, and safety of the person in custody.” 

Sauders v. Cnty. of Steuben, 693 N.E.2d 16, 18 (Ind. 1998). The duty does not extend to 

 

discussion, supra.
13

taking action to prevent a particular act. Id. Rather, the custodian’s duty “is to take 

reasonable steps under the circumstances for the life, health, and safety of the detainee.” Id. 

The steps to be taken “will vary according to the facts and circumstances presented in each 

case.” Id. (citations and quotations omitted).

In reaching this conclusion, our supreme court found the Restatement (Second) of 

Torts persuasive. Id. The Restatement recognizes that this distinction between the duty of a 

custodian and that of an ordinary landowner “arise[s] out of special relations between the 

parties, which create a special responsibility, and take the case out of the general rule.” 

Restatement 2d of Torts § 314A cmt. B. The duty to protect the other against unreasonable 

risk of harm “extends to risks arising out of the actor’s own conduct, or the condition of his 

land or chattels ... [and] to risks arising from pure accident, or from the negligence of the 

plaintiff himself.” Restatement 2d of Torts § 314A cmt. D.

Kader was an inmate in the facility’s care—not a social or business guest either 

invited or permitted onto the property. Thus, the trial court erred when it concluded that 

GEO owed Kader the duty of care generally reserved for an invitee. Upon remand, we 

instruct the trial court to apply the duty of care applicable to individuals and entities acting as 

a custodian, rather than as an ordinary landowner.

Contributory Negligence

We now turn to the trial court’s conclusion that Kader’s walking through the facility 

without an aid was contributory negligence that afforded GEO a complete defense to liability.

Indiana has adopted, in most tort cases, a comparative negligence scheme whereby the 
14

negligence of a plaintiff, which contributed to the complained-of injury, does not of itself 

afford a complete defense to liability for a defendant. See Ind. Code § 34-51-2-1 et seq. 

Rather, the relative levels of fault among the parties are assessed, and a defendant may be 

found to be partly or entirely liable or not liable for a plaintiff’s injuries. I.C. § 34-51-2-6. 

However, where the plaintiff pursues a claim of negligence against an alleged tortfeasor 

under the Indiana Tort Claims Act, the comparative negligence scheme set forth by the 

Indiana Comparative Fault Act does not apply. I.C. § 34-51-2-2. In such cases, contributory 

negligence on the part of a plaintiff provides a complete defense to liability for the State and 

other government actors who fall within the scope of the Act. Shand Min., Inc. v. Clay Cnty. 

Bd. of Comm’rs, 671 N.E.2d 477, 479 (Ind. Ct. App. 1996), trans. denied. 

The Indiana Tort Claims Act specifies who is within the scope of the provisions of the 

Act. The Act applies to suits at tort against governmental entities, political subdivisions, and 

individual members or employees of government entities under certain circumstances. I.C. 

§§ 34-13-3-1 & -5. Further, the Act provides that certain private parties working on behalf of

a governmental body also fall within the scope of the provisions of the Act. I.C. § 34-13-3-

22 (treating as political subdivisions statutorily created or defined community action 

agencies, individuals or corporations rendering public transportation services under certain 

circumstances, and members of volunteer fire departments under certain circumstances). 

Private prison operators like GEO and its employees do not fall within any of these 

categories.

That GEO falls outside the scope of the Indiana Tort Claims Act and the universe of 
15

claims that an individual may bring against the State finds support in several rulings by the 

United States Supreme Court. In a series of cases, and most recently in Minneci v. Pollard, 

___ U.S. ___, 132 S. Ct. 617 (2012), the Court considered lawsuits filed by prisoners alleging 

federal civil rights violations against private prison operators. In Minneci, the plaintiff was 

an inmate in a privately-operated, federal prison, and claimed that his Eighth Amendment 

rights had been violated when the private prison operator and its employees were negligent in 

their provision of medical care. Id. at 626. The Court held that in such circumstances, no 

claim under the Civil Rights Act may be pursued where other civil remedies—in Minneci, a 

negligence action at tort under state common law—are available to the inmate plaintiff. Id.

Taking together the provisions of the Tort Claims Act and the result of Minneci and 

its predecessor cases, we conclude that such private contractors as prison operators do not 

merely stand in the shoes of a government body for purposes of liability at tort. Rather, such 

private contractors are subject to liability in much the same manner as other private actors. 

GEO, a private business, is thus not entitled to relief from liability under a contributory 

negligence defense.

Moreover, whether a plaintiff has engaged in any form of negligent conduct that 

contributed to his injury—under either a comparative or a contributory negligence scheme—

is ordinarily a question left to a finder of fact to decide. Here, the trial court concluded that 

Kader’s failure to use a cane or wheelchair was contributory negligence that barred him from 

any recovery against GEO or the State. The testimony Kader offered during his deposition, 

portions of which were designated material submitted at summary judgment, indicates that 
16

despite his “drop foot” and a past history of occasional falls, he regularly navigated 

successfully in his prison environment without a cane or a wheelchair. And that testimony 

raises an additional question of fact concerning whether GEO, as Kader’s custodian, 

breached its duty of care by not precluding him from moving through the prison without also 

using a cane or wheelchair.

That is, GEO has not established that there is no question of material fact concerning 

whether Kader’s non-use of an ambulation aid on September 29, 2007, amounted to 

contributory negligence, or whether GEO in turn breached its duty of care in permitting 

Kader’s unassisted movement through the facility. This is therefore a question of fact for the 

jury to decide. The trial court erred when it determined otherwise. And upon remand, we 

instruct the trial court to treat Kader’s claims against GEO as within the scope of 

comparative, not contributory negligence.

Causation

Next, we turn to Kader’s contention that the trial court erred when it granted summary 

judgment on the question of whether his injuries were caused by his fall on September 29, 

2007. Kader argues that the trial court improperly shifted onto him the burden of producing 

evidence that his injuries were caused, or at least aggravated, by his fall.

We agree.

At summary judgment, GEO argued, and the trial court agreed, that a plaintiff must, 

where the plaintiff suffered some prior medical condition, bear the burden of proving that 

additional injuries or complications to that prior condition suffered were the result of a 
17

tortfeasor’s actions. In this, the court relied upon Topp v. Leffers, 838 N.E.2d 1027 (Ind. Ct. 

App. 2005), trans. denied, and Armstrong v. Gordon, 871 N.E.2d 287 (Ind. Ct. App. 2007), 

trans. denied. The proposition for which the trial court and the defendants relied upon these 

cases is generally correct—but it is operative at trial, where the burden of proof rests upon 

the plaintiff.

Here, Kader as the nonmovant plaintiff bore no burden of production until GEO as the 

movant defendant came forward with evidence establishing the absence of any issue of 

material fact as to the cause of Kader’s injuries. See Butler, 733 N.E.2d at 915. Thus, both 

Topp and Armstrong are easily distinguished—they apply to the plaintiff’s burden of proof at 

trial, not the nonmovant plaintiff’s burden of production at summary judgment. And our 

review of the record does not reveal that GEO satisfied its burden of production. GEO 

designated the testimony or affidavits of Kader and GEO employees on the question of the 

design, condition, construction, and maintenance of the floor grates; there is no medical 

evidence from either party in the record.

Having failed to designate any evidentiary matter in support of its motion on the 

question of causation, GEO failed to carry its burden of production at the summary judgment 

stage. Where, as here, the movant fails in its burden of production, the burden did not shift 

onto Kader as the nonmovant. See id. The trial court’s assignment of the burden of 

production to Kader was erroneous, and so was entry of summary judgment on causation.

Medical Treatment

Finally, we turn to the question of whether summary judgment was proper on Kader’s 
18

allegation that GEO was negligent in failing to procure follow-up medical treatment.

Here, GEO produced evidence in the form of contractual arrangements and testimony 

that questions of medical care were not within the scope of its role in the facility. Instead, the 

Department entered into an agreement with a contractor other than GEO to provide for 

inmate medical care. The Department also restricted GEO from providing such care itself. 

Kader’s testimony also indicates that he was aware GEO did not address questions of medical

care, and there is no evidence that GEO otherwise assumed a duty for Kader’s medical care.

In light of the designated evidentiary materials, we cannot conclude that the trial court 

erred when it entered summary judgment as to GEO’s duty of care for Kader’s medical 

treatment after he was released from Wishard Hospital and returned to the facility. We 

therefore affirm the trial court’s entry of summary judgment as to Kader’s claim that GEO 

was negligent in failing to provide for his follow-up medical care.

We cannot, however, sustain summary judgment in favor of the State and the 

Department on this basis. For while there is no question of material fact as to GEO’s 

position vis-à-vis medical care for Kader, there has been no evidentiary matter designated 

concerning any duty or lack thereof on the part of the State and the Department, as custodians 

of Kader and the ultimate authority over his medical treatment. We therefore reverse the trial 

court’s entry of summary judgment as to these defendants on Kader’s negligent medical 

treatment claim.

Conclusion

The trial court abused its discretion when it struck the entirety of Holland’s affidavit,
19

which Kader designated as evidentiary material in response to the motion for summary 

judgment. The trial court erred when it entered summary judgment against Kader regarding 

his claims against GEO, except as to Kader’s claim that GEO was negligent in its 

procurement and supervision of his follow-up medical care. The trial court also erred when it 

entered summary judgment against Kader on his claim of negligent medical treatment as it 

pertained to the State and the Department.

Affirmed in part, reversed in part, and remanded with instructions.

FRIEDLANDER, J., and KIRSCH, J., concur.