Court of Appeals of Indiana | Memorandum Decision 18A-CT-80 | June 20, 2018 Page 1 of 11

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Thomas A. Clements 

Law Offices of Thomas A. Clements 

Merrillville, Indiana

ATTORNEY FOR APPELLEE

Yolanda Cardona 

Crown Point, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Tonya Neal,

Appellant-Plaintiff,

v.

Gene Franiak d/b/a Gene’s 

Snow Service,

Appellee-Defendant. 

June 20, 2018

Court of Appeals Case No.

18A-CT-80

Appeal from the Lake Superior 

Court 

The Honorable John M. Sedia, 

Judge

Trial Court Cause No. 

45D01-1605-CT-99 

Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CT-80 | June 20, 2018 Page 2 of 11

[1] Tonya Neal appeals the trial court’s entry of summary judgment in favor of 

Gene Franiak d/b/a Gene’s Snow Service and the denial of her motion to 

correct error. We affirm. 

Facts and Procedural History

[2] Between 9:00 and 9:30 a.m. on March 3, 2015, Neal exited First Midwest Bank 

(“FMB”) on Hohman Avenue in Hammond, Indiana, and fell on the public 

sidewalk outside the building. In March 2016, Neal filed a complaint against 

FMB and Franiak alleging that, as she was exiting the bank premises, she 

“slipped and fell on an area of water and ice located at the entryway of the 

bank.” Appellant’s Appendix Volume II at 28. She also alleged that Franiak 

had been hired by FMB to keep the walkways and entryways of the bank 

premises free of ice and snow and that her fall occurred as a result of Franiak’s 

failure to do so. 

[3] In March 2017, FMB and Franiak filed a joint motion for summary judgment 

together with a memorandum in support of the motion and a designation of 

evidence. They argued in part that, even if they owed a duty to Neal, Indiana 

law does not require the immediate removal of snow and ice. Neal filed a 

response together with designated evidence and argued in part that Franiak had 

agreed to clear and salt the area of the walkway where she slipped and fell and 

that there was an issue of fact as to whether Franiak sufficiently salted the walk 

or otherwise made a reasonable effort to remove the ice from the walk. FMB 

and Franiak filed a reply arguing that salt was applied at approximately 7:00 

a.m. on the morning of Neal’s fall, Neal fell between 9:05 and 9:30 a.m., the 
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weather had continued to rain, sleet, and drizzle, and they were not given an 

opportunity to remedy the ice that may have accumulated from 7:00 a.m. until 

the time of her fall. On May 10, 2017, the court held a summary judgment 

hearing.1 

[4] On May 11, 2017, the court issued an order which granted summary judgment 

to FMB and Franiak finding no disputed facts, that “even when the inferences 

derived from those facts are strongly construed in Neal’s favor, it is clear what 

happened on that icy March day: Neal stepped out of the Bank, walked a few 

feet along a public sidewalk, slipped on ice, fell and was injured,” and that 

“[t]here was no evidence designated that [FMB] or Franiak did anything to 

create a more dangerous condition.” Id. at 13. Neal filed a motion to correct 

error, and FMB and Franiak filed a reply. On December 11, 2017, following a 

hearing,2the court issued an order which denied Neal’s motion to correct error

and provided in part: 

Neal . . . did not present any designated materials that would 

create a material issue of fact that [Franiak] did not properly clear 

and salt the sidewalk at 7:00 a.m. on the morning and at the 

location on the sidewalk where Neal fell, nor breached its duty to 

exercise reasonable diligence after clearing and salting the 

sidewalk as it continued to sleet after 7:00 a.m. until Neal’s fall 

between 9:00 a.m. and 9:30 a.m.

 

1 The record does not include a copy of the transcript of the hearing. 

2 The record does not include a copy of the transcript of the hearing. 
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Id. at 15. 

Discussion

[5] The issue is whether the trial court erred in entering summary judgment in 

favor of Franiak or abused its discretion in denying Neal’s motion to correct 

error. When reviewing a grant or denial of a motion for summary judgment

our well-settled standard of review is the same as it is for the trial court: whether 

there is a genuine issue of material fact, and whether the moving party is 

entitled to judgment as a matter of law. Goodwin v. Yeakle’s Sports Bar & Grill, 

Inc., 62 N.E.3d 384, 386 (Ind. 2016). The party moving for summary judgment

has the burden of making a prima facie showing that there is no genuine issue 

of material fact and that the moving party is entitled to judgment as a matter of 

law. Id. Once these requirements are met, the burden then shifts to the nonmoving party to show the existence of a genuine issue by setting forth 

specifically designated facts. Id. Any doubt as to any facts or inferences to be 

drawn therefrom must be resolved in favor of the non-moving party. Id. A trial 

court’s grant of summary judgment is clothed with a presumption of validity, 

and the party who lost in the trial court has the burden of demonstrating that 

the grant of summary judgment was erroneous. Henderson v. Reid Hosp. & 

Healthcare Servs., 17 N.E.3d 311, 315 (Ind. Ct. App. 2014), trans. denied. We 

may affirm a trial court’s grant of summary judgment upon any theory or basis 

supported by the designated materials. Id. We generally review rulings on 

motions to correct error for an abuse of discretion. Speedway SuperAmerica, LLC 

v. Holmes, 885 N.E.2d 1265, 1270 (Ind. 2008), reh’g denied. 
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[6] Neal argues that, although Franiak’s snow removal log showed that the walk 

had been shoveled and salted on the morning before the fall and Franiak 

believed the work was done at around 7:00 a.m., Franiak did not personally 

witness the performance of the work and stated it could have been done at 

midnight or a later time prior to the bank opening, that Franiak never inspected 

the scene of the work or the location of the fall, that she did not see any salt 

applied to the walkway where she fell, and that no dispute exists as to the 

presence of the ice. With respect to the claim that Franiak had no duty to 

immediately remove an accumulation of ice and snow, Neal states that “[o]f 

course, the issue here is not the immediate duty, but whether [Franiak] 

exercised reasonable care in the removal and salting of the walkway originally” 

and that no evidence was “shown of any additional creation of a second snow 

or ice event between the time of the clearing and [her] fall.” Appellant’s Brief at 

17-18.

[7] Franiak maintains that Neal attempts to rely solely upon the fact that there was 

ice to prove negligence and that she is merely speculating that he must have 

failed to do something that caused the ice to form. He argues that, as Neal 

indicated, “it continued to rain/drizzle with sleet, and snow and the 

temperature was cold enough to form ice when she fell.” Appellee’s Brief at 11. 

He further argues that Neal presented no evidence that he initially cleared the 

snow and salted the walks in a negligent manner, that she claims he should 

have gone back to clear and re-salt the walks sometime before 9:00 a.m., and 

that, even if it was his usual practice to re-inspect the subject property, he had to 
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be afforded a reasonable opportunity to remove the ice and snow especially if, 

as Neal states, it continued to drizzle with sleet and icy rain. 

[8] To prevail on a claim of negligence the plaintiff must show: (1) a duty owed to 

plaintiff by defendant; (2) breach of duty by allowing conduct to fall below the 

applicable standard of care; and (3) compensable injury proximately caused by 

defendant’s breach of duty. Goodwin, 62 N.E.3d at 386. Whether a duty exists 

is a question of law for the court to decide. Id. at 386-387. A defendant may 

obtain summary judgment in a negligence action when the undisputed facts 

negate at least one element of the plaintiff’s claim. Pelak v. Ind. Indus. Servs., 

Inc., 831 N.E.2d 765, 769 (Ind. Ct. App. 2005), reh’g denied, trans. denied. 

Negligence cannot be inferred from the mere fact of an accident. Id. Rather, all 

the elements of negligence must be supported by specific facts designated to the 

trial court or reasonable inferences that might be drawn from those facts. Id. 

An inference is not reasonable when it rests on no more than speculation or 

conjecture. Id. Where the facts are undisputed and lead to but a single 

inference or conclusion, the court as a matter of law may determine whether a 

breach of duty has occurred. King v. Ne. Sec., Inc., 790 N.E.2d 474, 484 (Ind. 

2003), reh’g denied. 

[9] To the extent Franiak owed a duty to Neal to perform the ice removal work 

with reasonable care, we cannot say that the entry of summary judgment was 

not proper or that reversal is warranted. Franiak and FMB designated evidence 

which includes a document titled “Scope of Services” and “Snow Removal 

Specification” which states in part, under the heading “Salting,” that “if icy 
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conditions are present, but plowing is not required, contractor is responsible to 

spread ice melt or approved material on all concrete and asphalt services to 

eliminate hazardous conditions” and “all pedestrian traffic areas defined in the 

site visit . . . are to be completely clean by 7:00AM.” Appellant’s Appendix 

Volume II at 80-81. Franiak further designated a Snow Removal Service Log 

for the FMB location which provided “Date of Service: Mar. 3, 2015,” 

indicated a mark next to the phrase “Shoveling of walks” and stated “Hours 

Shoveled: 1 ,” and stated “Number of salting applications – lots 1 ” and 

“Number of salting applications – walks 2 .” Id. at 82. Under a heading for 

service notes, the log stated: “Little bit of everything fell this evening. 

Snow/freezing rain/sleet. Scraped snow/sleet first then salted. Manager 

(Don) called around 10AM stating someone fell but walks were mostly fine. 

Sent man out again & salted cleaned & salted walks again. Used 2 bags of 

CC.” Id. Franiak also designated an invoice for March 2015 for FMB which 

listed the dates of service and amounts charged and, for the date of March 3, 

2015, stated “Snow & freezing rain/sleet fell. Added salt to all. In AM 

Manager called in AM stating walks were fine but an injury occurred. Sent 

man out again to re-salt walks. Don stated walks were fine in AM.” Id. at 83. 

[10] In his deposition, Franiak testified that, if there were two inches or more of 

snow, he “went out and plowed” and “[u]sually we would do it when the snow 

stopped, but we would normally have it done by the time the business opened 

in the morning.” Id. at 108. When asked if the walks would have been salted 

before 7:00 a.m., Franiak testified: “Could very well have been. . . . However it 
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depended on when the snow fell. If it was at midnight, it would have been at 

midnight. But I believe that particular date it was at 7:00 a.m. or thereabouts.” 

Id. at 111. When asked if he recalled whether he or one of his employees did 

that work, Franiak replied that he did not recall. When asked “[s]o after Don 

called you are not sure if you sent out there personally or not,” Franiak replied 

“[c]ould have been me, yes” and “[m]aybe it wasn’t.” Id. at 112. When asked 

if there is a time one has to allow for the salt to melt the snow, he responded 

affirmatively and testified “[i]t depends on the weather” and “[i]f it is really, 

really cold; it would take a lot longer for the salt to take effect.” Id. at 114. 

When asked “if it continues to snow or continues to rain or sleet . . . [d]o you 

go back to the property to inspect and reassess whether you need to redo the 

work,” he answered “Absolutely. You have to,” and when asked if that was 

something he did for all of his properties, he replied “[n]ot just the bank, I do it 

at the malls. I do that at the other companies, yes. I wouldn’t be a good 

businessman if I didn’t take care of the customer.” Id. at 115-116. When asked 

if he had an opportunity to go back to FMB when this incident occurred, 

Franiak testified “[a]ctually, no. Because when we got done so early or early in 

the morning, 7:00 o’clock, around there, by the time that would have taken 

effect, it would have been already, the bank would have been open,” “[a]nd by 

the time I would have got there would have been maybe between 10 and 11, if I 

would normally go back,” and “[b]ut it didn’t snow anymore, why would I 

want to go back?” Id. at 116. He also testified: “The manager of the bank 

called approximately 9:30, 10:00 o’clock, I guess, and said someone had fell. 
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Didn’t tell me who it was. Didn’t tell me if there was any injury or if there was 

– he did tell me that he took no exception to the walk.” Id. 

[11] In her deposition, Neal testified that the incident occurred between 9:05 and 

9:30 after she exited FMB. When asked what the weather was like the day of 

the incident, Neal testified “[i]t was like rainy like drizzling, like what you call 

it, sleeting, yeah, like that, icy rain.” Id. at 39. When asked if she knew 

whether it had snowed the day before the incident, she answered “[i]t was 

basically like that icy rain the day before.” Id. When asked if “it was snowing 

at the time that [she was] headed to the bank,” Neal replied “[i]t wasn’t 

snowing,” and when then asked “[w]as it that sleet that you’re talking about,” 

she answered “[t]hat sleet, yep, that rainy --.” Id. When asked if she knew if 

there was an accumulation of snow on the ground, Neal said “[n]o,” and when 

asked if it was cold enough for ice to form, she replied affirmatively. Id. When 

asked how she traveled to FMB, Neal testified she took the bus, and when 

asked if she had walked to a bus stop, she answered “Yes. I go to the bus stop 

from my house. I catch the 3:15. It takes me to State Line. Once I get to State 

Line, I got to cross the street and then I got to cross another street before I get to 

the bank.” Id. at 103. When asked about the distance from where the bus 

dropped her off to the bank, she testified “[i]t’s more than a block. Maybe a 

block-and-a-half, close to two blocks,” and that she walked that distance. Id. 

She stated, “[w]hen I got off the bus, and they had snow piled up this high but it 

was pushed all to the side and that part is clear,” “I come through there it’s 

clear,” “[a]nd then you have another parking lot you go through, that snow is 
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clear,” and “then I crossed the street and I went to the bank.” Id. at 104. When 

asked if she had walked by the location where she fell before she entered FMB, 

Neal answered “no,” and when asked where she was planning to go when she 

fell, she answered “[g]oing to go back up to Hohman across the street to catch 

the bus.” Id. at 42. When asked if, after she fell, she looked at the ground to 

see what caused her to fall, Neal replied affirmatively and stated “[i]t was ice 

because the guy tried to help me up and he was sliding.” Id. at 43. When asked 

if she saw salt on the surface, she answered “[n]o.” Id. at 44. When asked 

“[w]as there any type of water or melted ice anywhere near you where you 

fell,” Neal answered “[i]t was frozen ice,” and when asked “[c]ompletely 

frozen,” she replied “[y]es.” Id. When asked “[w]as it still snowing when you 

fell,” Neal answered: “It was snowing. It was like ice and it froze. So it rain

and it froze.” Id. When asked how long she was in the bank, she responded 

“[m]aybe like about the seven, eight minutes, ten minutes.” Id. 

[12] In sum, the designated evidence reveals that Franiak’s snow removal service log 

indicates that the walk outside of the FMB building was scraped and then that 

salt was applied on the morning of March 3, 2015, that Franiak believed the 

work was performed “at 7:00 a.m. or thereabouts,” that Neal exited the bank

between 9:05 and 9:30 a.m. and fell on the walk, and that Franiak received a 

call around 10:00 a.m. reporting that someone had fallen. Id. at 111. 

According to Neal, it was drizzling or “sleeting . . . that, icy rain” outside on 

the day of her fall and that it was cold enough for ice to form. Id. at 39. 

Franiak testified, when asked if he had an opportunity to return to FMB prior 
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to the incident, that he did not and that it would have been between 10:00 and 

11:00 a.m. by the time he would have arrived there. Franiak was not made 

aware of any accumulated ice on the sidewalk after 7:00 a.m. and prior to 

Neal’s fall and, even if Franiak had been made aware that ice had formed or the 

walk became slick during that time, he was not afforded a reasonable 

opportunity to treat the walk again prior to the time of Neal’s fall. Accordingly, 

we conclude that Franiak did not breach any duty he owed to Neal. 

Conclusion

[13] For the foregoing reasons, we affirm the entry of summary judgment in favor of 

Franiak and the denial of Neal’s motion to correct error. 

[14] Affirmed. 

Bailey, J., and Crone, J., concur.