Court of Appeals of Indiana | Opinion 45A05-1711-CT-2721 | May 7, 2018 Page 1 of 12

ATTORNEY FOR APPELLANT

Robert A. Plantz

Robert A. Plantz & Associates, LLC

Merrillville, Indiana

ATTORNEYS FOR APPELLEE

Kimberly P. Peil

Lauren K. Kroeger

Hoeppner Wagner & Evans LLP

Merrillville, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Frances Dehoyos,

Appellant-Plaintiff,

v.

Golden Manor Apartments,

Appellee-Defendant.

May 7, 2018

Court of Appeals Case No.

45A05-1711-CT-2721

Appeal from the Lake Superior 

Court.

The Honorable John M. Sedia, 

Judge.

Trial Court Cause No.

45D01-1509-CT-169

Darden, Senior Judge

Statement of the Case

[1] Frances Dehoyos appeals the trial court’s grant of summary judgment in favor 

of Golden Manor Apartments. We reverse and remand.
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Issue

[2] Dehoyos raises one dispositive issue, which we restate as: whether the trial 

court erred in granting Golden Manor’s motion for summary judgment.

Facts and Procedural History

[3] Golden Manor is a senior citizen living facility located in Hammond, Indiana. 

During the winter of 2013, Golden Manor’s maintenance staff would generally 

arrive at work at 8:00 a.m. to inspect the parking lot and sidewalk for ice and 

snow. In its response to Dehoyos’ interrogatories, Golden Manor indicated 

that its policy was to have staff also apply salt to sidewalks as needed. Golden 

Manor had also contracted with Meier Snow Plow Company to clear snow 

from the parking lot and to apply salt to sidewalks and the parking lot. 

However, under the terms of the contract, Meier performed ice melting 

applications only when directed by Golden Manor.

[4] Dehoyos lived at Golden Manor. Earlier, in 2013, she had experienced a 

situation wherein Golden Manor’s management had failed to ensure that snow 

was removed from the sidewalks. As she walked toward the building, she

found herself up to her ankles in icy snow. On that occasion, the building’s 

manager helped her walk through the snow and ice. On other occasions, 

Dehoyos observed that Golden Manor’s management failed to clean snow and 

ice off sidewalks “until late afternoon.” Appellant’s App. Vol. II, p. 49. She 

had also heard other residents complain about a lack of timeliness in clearing 

off ice and snow on the premises.
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[5] On the morning of Sunday, December 29, 2013, there was snow on the ground, 

and it had been there for a few days. It was cold. Meier’s workers had applied 

salt at Golden Manor over the previous several days. There is no evidence that 

Golden Manor’s staff inspected the sidewalks or applied salt on the morning of 

December 29, 2013. Between 10:00 a.m. and 11:00 a.m., Dehoyos exited

Golden Manor’s building. The door she used opened onto a sidewalk that led 

to the parking lot. A portion of the building’s downspout was located on top of

the sidewalk.

[6] Dehoyos took approximately two steps onto the sidewalk and then slipped and 

fell on ice, striking her head. Although the sidewalk had initially appeared 

clear, there was a “glaze” of ice on it. Id. at 41, 46. Dehoyos bled from a cut 

on her head. She managed to return to her apartment and called her children, 

and was taken to the hospital. She also sustained an injured ankle. Further, 

after the fall Dehoyos began experiencing recurring headaches and neck pain.

[7] It appears from Golden Manor’s phone records that Golden Manor called 

Meier shortly before 11:00 a.m. It further appears that Meier’s employees went 

to Golden Manor shortly thereafter and again at approximately 3:30 p.m. that 

day and applied two bags of salt at some point during those visits. On the next 

day, December 30, 2013, Meier’s workers returned to Golden Manor and 

spread six bags of salt on the sidewalks.

[8] On September 23, 2015, Dehoyos sued Golden Manor, alleging negligence

arising from the icy condition of the premises. Golden Manor filed an answer, 
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and the case progressed. Golden Manor took Dehoyos’ deposition in January 

2017. Next, Golden Manor filed a motion for summary judgment with a 

supporting memorandum of law and a designation of evidence. Dehoyos filed 

a response, a memorandum of law, and designation of materials, which 

included her affidavit.

[9] Golden Manor filed a reply. In addition, Golden Manor moved to strike a 

portion of Dehoyos’ affidavit and a portion of Dehoyos’ response to Golden 

Manor’s motion for summary judgment. The trial court held oral argument, 

after which it granted Golden Manor’s motion to strike. The trial court also 

granted Golden Manor’s motion for summary judgment. The trial court 

concluded, “there is no dispute of material fact “that Golden Manor knew that 

a condition existed that created an unreasonable danger to DeHoyos [sic], or 

should have discovered the condition and its danger.” Id. at 16. This appeal 

followed.

Discussion and Decision

[10] Dehoyos argues the trial court erred in concluding there were no disputes of 

material fact. She claims there is ample evidence Golden Manor knew or 

reasonably should have known of the ice on which she fell and failed to take 

reasonable steps to protect her against that danger.

[11] We review summary judgment de novo, applying the same standard as the trial 

court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). Summary judgment 

is appropriate “if the designated evidentiary matter shows that there is no 
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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). We construe the evidence 

in favor of the nonmovant and resolve all doubts against the moving party. 

Pfenning v. Lineman, 947 N.E.2d 392, 397 (Ind. 2011) (quotation omitted). The 

party moving for summary judgment bears the initial burden to establish its 

entitlement to summary judgment. Id. at 396-97. Only then does the burden 

fall upon the nonmoving party to set forth specific facts demonstrating a 

genuine issue for trial. Id. at 397 (quotation omitted).

[12] The summary judgment process is not a summary trial. Hughley, 15 N.E.3d at 

1003-04. Indiana consciously errs on the side of letting marginal cases proceed 

to trial on the merits, rather than risk short-circuiting meritorious claims. Id. at 

1004. Further, summary judgment is rarely appropriate in negligence cases 

because such cases are particularly fact-sensitive and are governed by a standard 

of the objective reasonable person, which is best applied by a jury after hearing 

all the evidence. Kramer v. Catholic Charities of Diocese of Fort Wayne-South Bend, 

Inc., 32 N.E.3d 227, 231 (Ind. 2015). Nevertheless, a grant of summary 

judgment is clothed with a presumption of validity, and the appellant bears the 

burden of demonstrating that the trial court erred. Id. (quotation omitted).

[13] Dehoyos’ premises liability claim against Golden Manor is grounded in 

negligence. To recover on a negligence claim, a plaintiff must establish: (1) a 

duty owed by the defendant to the plaintiff; (2) a breach of that duty; and (3) 

injury to the plaintiff resulting from the defendant’s breach. Miller v. Rosehill 

Hotels, LLC, 45 N.E.3d 15, 19 (Ind. Ct. App. 2015).
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[14] In Indiana, a person entering onto the land of another is an invitee, a licensee, 

or a trespasser, and the entrant’s status on the land determines the duty that the 

landowner owes to said person. Burrell v. Meads, 569 N.E.2d 637, 639 (Ind. 

1991). The parties do not dispute that Dehoyos was an invitee of Golden 

Manor because she resided on its property. A property owner has a duty to

maintain its property in a reasonably safe condition for business invitees. 

Miller, 45 N.E.3d at 20. Liability for breach of the duty to maintain property is 

established 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.

Id. at 20 (quoting Restatement (Second) of Torts § 343). “‘[T]he duty of 

reasonable care owed by an inviter to an invitee should in no way be 

diminished by the presence of natural accumulations of ice and snow.’” 

Henderson v. Reid Hosp. and Healthcare Servs., 17 N.E.3d 311, 316 (Ind. Ct. App. 

2014) (quoting Poe v. Tate, 161 Ind. App. 212, 215, 315 N.E.2d 392, 394 

(1974)), trans. denied.

[15] The key question is whether Golden Manor breached its duty to Dehoyos to 

maintain its property in a reasonably safe condition. Whether an act or 
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omission is a breach of duty is generally a question of fact for a jury. N. Ind. 

Pub. Serv. Co. v. Sharp, 790 N.E.2d 462, 466 (Ind. 2003). It is a question of law 

only if the facts are undisputed and a single inference can be drawn from those 

facts. Id.

[16] The Court has previously addressed premises liability cases involving invitees 

who fell on snow and ice. In the Miller case, Miller was staying at a motel and 

went outside to get in her car. 45 N.E.3d at 16. She saw snow on the ground, 

and the parking lot was icy. Miller walked to her car via a salted sidewalk and 

decided to move her car closer to the motel. Next, Miller got out of her car, 

and she fell as she stepped onto a slick curb. She sued, claiming negligence 

based on premises liability. The motel prevailed on summary judgment at the 

trial court, but the Court reversed. The Court concluded there were disputes of 

material fact as to whether the motel should have anticipated that an invitee 

such as Miller would walk in the parking lot and on sidewalks despite the risk 

of danger. Further, the Court determined there were disputes as to whether the 

motel knew or reasonably should have known that the sidewalk was unsafe.

[17] Similarly, in the Henderson case, a hospital’s maintenance staff was notified 

early one winter morning that slick patches were present in the parking lot. 17 

N.E.3d at 313-14. They assembled a crew, who spread salt on the hospital’s 

parking lots and sidewalks. Henderson parked in the hospital’s lot and slipped 

on a patch of ice as she got out of her car, falling to the ground. Security 

personnel later notified the maintenance staff that the parking lot was 

insufficiently salted. The trial court granted summary judgment to the hospital, 
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but the Court reversed. The Court concluded there were disputes of material 

fact as to whether the hospital acted reasonably in response to the ice on its 

property as to invitees.

[18] In Christmas v. Kindred Nursing Ctrs. Ltd. P’ship, 952 N.E.2d 872 (Ind. Ct. App. 

2011), Christmas visited a physical rehabilitation center. He walked through 

snow and water in a parking lot and then stepped onto a sidewalk that appeared 

to be covered in water. The substance was actually ice, and Christmas slipped 

and fell. He had noticed salt on the ground next to the area where he fell. The 

trial court granted summary judgment to the center, but the Court reversed. 

Among other conclusions, the Court determined there were genuine disputes of 

material fact as to whether the rehabilitation center knew or reasonably should 

have known of the condition and the harm it posed to invitees and failed to 

exercise reasonable care to protect against the danger.

[19] Also in 2011, the Court issued a decision in Bell v. Grandville Coop., Inc., 950 

N.E.2d 747 (Ind. 2011). In that case, in February 2007 Bell was babysitting her 

grandchild at an apartment complex. There were piles of snow in the parking 

lot that had melted and refrozen over the past few days, and on the morning at 

issue the complex’s maintenance staff had placed ice melt around the complex. 

Bell’s daughter, who lived in the complex, had previously informed the 

complex’s managers that ice tended to form in the parking lot outside her 

building. As Bell walked to her car, she slipped and fell on the ice, suffering 

injuries. The trial court granted summary judgment to the apartment complex, 

but the Court reversed. The Court concluded there was a dispute of material 
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fact as to whether the complex knew or should have known of the threat of ice 

to invitees and took reasonable steps to address it.

[20] By contrast, in Orth v. Smedley, 177 Ind. App. 90, 378 N.E.2d 20 (1978), a panel 

of the Court affirmed the trial court’s grant of summary judgment to a landlord 

in a renter’s action for premises liability. The renter, Orth, left her apartment at 

6:00 a.m. on a day in January. It had rained the night before, and the rain had 

frozen into ice. Orth slipped and fell on an icy patch of driveway, breaking her 

arm. She saw the ice before stepping on it but was trying to reach a car where 

her coworker was waiting. The landlords did not wake up until 7:30 a.m. The

Court concluded there was no dispute of material fact as to whether the 

landlords had actual or constructive knowledge of the danger the ice posed to 

invitees because the landlords had not yet woken up and were unaware it had 

stormed and then frozen the night before.

[21] To summarize, in the Henderson, Christmas, and Bell cases, the Court took note 

of evidence that employees and contractors of the defendants had been aware of 

icy and snowy ground and tried to address it, thus giving rise to disputes of 

material fact as to whether: (1) the defendants were aware or reasonably should 

have been aware of the danger; and (2) took reasonable steps to correct it. By 

contrast, in the Orth case the property owners were asleep when ice formed at 

their property, and there was no dispute of material fact as to whether the 

property owners reasonably should have been aware of the danger to their 

invitee.
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[22] The current case more closely resembles the Miller, Henderson, Christmas, and 

Bell cases rather than the Orth case. Golden Manor does not dispute the fact 

that it operated a senior citizen living center and had contracted with Meier 

Snow Plow Company to clear snow from the building’s parking lot and to apply 

salt on its sidewalks only as directed by Golden Manor. Earlier in 2013, 

Dehoyos alleges that she had encountered trouble with ice and snow, and the 

building’s manager had assisted her in walking through a dangerous area. In 

addition, she alleges that she had noticed inadequate efforts to remove ice and 

snow at the building. At times, snow and ice was not removed until the 

afternoon. In addition, Dehoyos claimed she had heard complaints from others 

on that topic.

[23] On the morning of December 29, 2013, snow remained on the ground at 

Golden Manor and had been there for several days. Meier employees had 

applied salt to Golden Manor sidewalks over the past several days. Between 10 

a.m. and 11 a.m. on December 29, Dehoyos fell on a sidewalk that initially 

looked safe but had a glaze of ice on it. Dehoyos’ inability to see the ice further 

distinguishes this case from the Orth case, where the plaintiff saw the ice but 

chose to walk on it anyway.

[24] The record indicates that shortly before 11:00 a.m., Golden Manor called 

Meier. Afterwards, Meier’s employees went to Golden Manor twice that day, 

and apparently spread two bags of salt on the sidewalk during their visits. On 

the next day, December 30, Meier spread six bags of salt on the sidewalks.
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[25] We conclude from the foregoing evidence that there are disputes of material 

fact as to whether Golden Manor knew or reasonably should have known on 

the morning of December 29, 2013, of the risk posed by ice on the sidewalk 

where and before Dehoyos fell and whether Golden Manor took reasonable 

care to address the risk.

[26] Golden Manor argues Dehoyos has failed to provide any evidence showing 

when the ice formed, speculating that it could have formed after Golden 

Manor’s building staff was supposed to have inspected the property in the 

morning. Golden Manor points to no evidence that its staff did, in fact, inspect 

the sidewalks before 10:00 a.m. the morning of December 29, 2013. It is 

undisputed that cold winter conditions existed at the time of the incident and 

that snow had been present at Golden Manor for several days. Further, 

Dehoyos testified in her deposition that it was cold outside and had been for 

several days. Given this evidence, and Golden Manor’s failure to point to any 

evidence of drastic weather changes on the morning of December 29, one could 

reasonably infer that the ice formed prior to Dehoyos’ slip and fall on the 

morning of December 29. Dehoyos has carried her burden of demonstrating 

error in the trial court’s grant of summary judgment.

[27] Dehoyos also argues the trial court erred in granting Golden Manor’s motion to 

strike, but we do not need to address that issue. There is other evidence in the 

record that amply establishes disputes of material fact, and we do not need to 

consider the statements that Golden Manor moved to strike.
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Conclusion

[28] For the reasons stated above, we reverse the judgment of the trial court and 

remand for further proceedings.

[29] Reversed and remanded.

[30] Baker, J., and Altice, J., concur.