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 APPELLANTS: ATTORNEYS FOR APPELLEES:

CHET ZAWALICH ROBERT J. KONOPA

The Law Office of Chet Zawalich MARK D. KUNDMUELLER

South Bend, Indiana Tuesley Hall Konopa, LLP

South Bend, Indiana

IN THE

COURT OF APPEALS OF INDIANA

FLETCHER COLEMAN and )

DOROTHY COLEMAN, )

)

Appellants-Plaintiffs, )

)

vs. ) No. 71A05-1106-CT-300

)

NORTHEAST NEIGHBORHOOD )

REVITALIZATION ORGANIZATION, INC., )

and NORTHEAST NEIGHBORHOOD )

COUNCIL, INC., )

)

Appellees-Defendants. )

APPEAL FROM THE ST. JOSEPH CIRCUIT COURT

The Honorable Michael G. Gotsch, Judge

Cause No. 71C01-0906-CT-79

January 30, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION
2

ROBB, Chief Judge

Case Summary and Issues

After falling in front of an old fire station owned by the City of South Bend and used 

by the Northeast Neighborhood Council, Inc. (“NENC”) as a food pantry (the “Property”), 

Fletcher Coleman and his wife, Dorothy, filed a complaint asserting claims for 1) negligence 

on behalf of Fletcher against the Northeast Neighborhood Revitalization Organization 

(“NNRO”); the City of South Bend; South Bend Heritage Foundation, Inc. (the “Heritage 

Foundation”); and NENC; and 2) loss of consortium on behalf of Dorothy against the same 

defendants. NNRO, NENC, and the Heritage Foundation all filed motions for summary 

judgment. Along with their response, the Colemans filed a motion to strike portions of 

affidavits which NNRO designated in support of its motion for summary judgment. The trial 

court denied the Colemans’ motion to strike and granted summary judgment in favor of 

NNRO, NENC, and the Heritage Foundation. 

The Colemans raise three issues for our review, which we restate as 1) whether the 

trial court abused its discretion in denying the Colemans’ motion to strike; 2) whether the 

trial court erred in granting NENC’s motion for summary judgment; and 3) whether the trial 

court erred in granting NNRO’s motion for summary judgment.1 We conclude the trial court 

did not abuse its discretion in denying the Colemans’ motion to strike, and the trial court did 

not err in granting either NENC’s or NNRO’s motion for summary judgment, and we 

therefore affirm. 

 

1 The Colemans do not appeal the trial court’s grant of summary judgment in favor of the Heritage 
3

Facts and Procedural History

On May 30, 2008, Fletcher slipped and fell on loose concrete and/or asphalt in front of 

the building on the Property. As a result, his left leg was amputated below his knee. The 

Property, once a fire station, has been owned by the City of South Bend for over twenty 

years. NENC has occupied the first floor and basement of the Property for several years, 

running a food pantry on the first floor and storing food for the food pantry in the basement. 

In addition, NENC conducts meetings in the building, other neighborhood groups hold 

meetings and activities in the building, and the City uses the building as a polling place for 

elections. The food pantry is staffed entirely by volunteers. Fletcher served as a volunteer 

for approximately six years prior to his injury, and he was volunteering on the day of the 

incident. 

Neither NENC nor NNRO lease the Property. NNRO did lease the Property in the 

past, but it has not since 2003 and at the time of the incident NNRO did not use or occupy the 

Property. South Bend permits NENC to use the first floor and basement. To aid NENC in its 

endeavors, NNRO paid for the cleaning and utilities of the Property. NENC, NNRO, and 

South Bend all have keys to the Property, and little oversight exists regarding who has a key 

to the Property. 

Discussion and Decision

I. Standard of Review

In ruling on the admissibility of evidence, trial courts enjoy broad discretion, including 

rulings on motions to strike affidavits. W.S.K. v. M.H.S.B., 922 N.E.2d 671, 695-96 (Ind. 

 

Foundation, and thus, we need not address it.
4

Ct. App. 2010). We review such rulings for an abuse of discretion. Id. at 696. When 

reviewing a grant of summary judgment, the reviewing court stands in the shoes of the trial 

court and applies the same standards as the trial court. Rider v. McCamment, 938 N.E.2d 

262, 266 (Ind. Ct. App. 2010). Summary judgment is appropriate only where the evidence 

shows there are no genuine issues of material fact and the moving party is entitled to 

judgment as a matter of law. Gillespie v. Niles, 956 N.E.2d 744, 748 (Ind. Ct. App. 2011). 

All facts and reasonable inferences drawn from those facts are construed in favor of the nonmoving party. Id. 

II. Motion to Strike

In support of its motion for summary judgment, NNRO submitted affidavits from 

Pamela Myer, Gary Gilot, Lynn Coleman, and Carl Littrell, all South Bend employees. Each 

employee averred that “South Bend, as the owner of [the Property], has been exclusively 

responsible for repair, replacement, modification and maintenance (as needed) of all 

structural portions of [the Property] including all exterior asphalt located at or near the front, 

side and rear of [the Property],” and that South Bend has never asked any other organization 

to fulfill these obligations “as all matters related thereto are the responsibility of the City of 

South Bend, Indiana, as the owner of said premises.” Appendix to Brief of Appellee, 

[NNRO] at 18-50. In addition, the employees’ affidavits include statements concerning the 

one-year lease between South Bend and NNRO from 2002 and 2003, and NNRO attached a 

copy of the lease to each affidavit. 
5

Affidavits in support of summary judgment motions “shall set forth such facts as 

would be admissible in evidence.” Trial Rule 56(E). The Colemans argue the affidavits are 

inadmissible because witnesses are prohibited from testifying as to legal conclusions and the 

statement that South Bend has been exclusively responsible for maintenance and repair of the 

Property is a legal conclusion. See Evidence Rule 704(b). The Colemans also assert that any 

statements regarding the expired lease are irrelevant and thus inadmissible. We disagree with 

both arguments. The statements of each employee concerning South Bend’s responsibility 

for the Property are not legal conclusions. They are statements regarding the relationship 

between South Bend and all other parties associated with the Property. Specifically, the 

affidavits state that South Bend, rather than anyone else associated with the Property, 

assumed the responsibilities of repairing and maintaining the Property. These statements are 

facts from which legal conclusions can be drawn, but they are not legal conclusions on their 

own. Also, statements regarding the lease are not irrelevant. Although NNRO does not 

appear to have been a holdover tenant since it did not physically remain on the premises,2the 

lease, even if expired, gives historical context to the relationships and responsibilities of the 

parties associated with the Property when Fletcher fell in 2008. Thus, the trial court did not 

abuse its discretion. 

 

2

See Houston v. Booher, 647 N.E.2d 16, 19 (Ind. Ct. App. 1995) (“In the absence of an agreement to 

the contrary, when a tenant holds over beyond the expiration of the lease and continues to make rental 

payments, and the lessor does not treat the tenant as a trespasser by evicting him, the parties are deemed to 

have continued the tenancy under the terms of the expired ease.”).
6

III. Summary Judgment

In a negligence action the plaintiff must prove three elements to prevail: 1) the 

existence of a duty of care owed by the defendant to the plaintiff; 2) a breach of that duty of 

care; and 3) injury to the plaintiff proximately caused by the breach of duty. Sizemore v. 

Templeton Oil Co., Inc., 724 N.E.2d 647, 650 (Ind. Ct. App. 2000). Whether a duty exists is 

a question of law for the court to decide. Id. “In premises liability cases, whether a duty is 

owed depends primarily upon whether the defendant was in control of the premises when the 

accident occurred. The rationale is to subject to liability the person who could have known 

of any dangers on the land and therefore could have acted to prevent any foreseeable harm.” 

Rhodes v. Wright, 805 N.E.2d 382, 385 (Ind. 2004). In Risk v. Schilling, 569 N.E.2d 646, 

647 (Ind. 1991), in determining whether an owner of property had a duty to exercise 

reasonable care, our supreme court focused on whether the owner was a “possessor” of the 

area where injury occurred and cited the Restatement Second of Torts for the definition of 

“possessor”: 

A possessor of land is

(a) a person who is in occupation of the land with intent to control it or

(b) a person who has been in occupation of land with intent to control it, if no 

other person has subsequently occupied it with intent to control it, or

(c) a person who is entitled to immediate occupation of the land, if no other 

person is in possession under Clauses (a) and (b).

Restatement (Second) of Torts § 328 E (1965). 

The Colemans argue whether or not NENC and/or NNRO owed Fletcher a duty, i.e. 

whether either organization was “in control of the premises when the accident occurred,” are 
7

genuine questions of material fact. As to NENC, the Colemans rely upon the following facts 

in support of their contention that NENC owed a duty to Fletcher: NENC occupies the first 

floor and basement of the Property for the use of its food pantry; NENC conducts meetings 

and hosts other activities in the building; NENC has keys to the Property; volunteers of 

NENC have access to keys to the Property; NENC pays for the telephone line for the 

Property; NENC volunteers assist in the maintenance of the parking area and sidewalk in 

front of the building; NENC designates the hours of the food pantry, where clients park, and 

which doors are for public use to enter the building; and NENC volunteers have at times 

swept away broken pieces of asphalt and/or concrete from the front of the building where 

Fletcher fell. As to NNRO, the Colemans rely upon the following facts in support of their 

contention that NNRO owed a duty: NNRO pays the utility bills for the Property; NNRO 

pays the janitor of the building; NNRO has keys to the Property; NNRO hires someone to cut 

the grass and remove snow, including removal from the area in front of the building where 

Fletcher fell; NNRO pays for the security system for the Property; and the janitor of the 

Property, paid by NNRO, has at times removed broken pieces of asphalt and/or concrete from 

the front of the building. 

NENC argues that, at best, it occupied the first floor and basement of the Property. It 

contends it had no control over the building’s exterior or the surrounding parking and 

walking areas. In response to the Colemans’ contention that NENC was a possessor of the 

Property, as defined by the Restatement Second of Torts, NENC argues South Bend gave 

NENC a license to use the property for its community service purposes and that NENC was 
8

nothing more than a licensee. In support of its argument, NENC points to the affidavits of 

South Bend employees who all assert that South Bend had the exclusive responsibility for the 

repair and maintenance of the exterior of the Property. 

Similarly, NNRO argues it did not exhibit any control over the Property, let alone 

sufficient control to be deemed a possessor of the Property. In support of its contention, 

NNRO points to the facts that it was not the owner of the Property, did not use the Property, 

is not a leaseholder, never made structural repairs to the building or premises, and was never 

given authority to make repairs by South Bend. Although NNRO paid for the janitor, snow 

removal, lawn care, utilities, and security system for the Property, NNRO asserts this 

amounts to nothing more than financially supporting the food pantry. 

The Colemans claim Risk is applicable. There, our supreme court determined the 

owner of property which caused an injury was not the possessor of the property because the 

owner exhibited no control over it. 569 N.E.2d at 647-48. Unlike Risk, however, here we 

have evidence that South Bend did exercise control over the Property and the area where 

Fletcher fell. Namely, four employees of South Bend averred that South Bend maintained 

exclusive responsibility for structural repairs and maintenance to the Property, including all 

exterior asphalt around the building. The Colemans also refer us to our reasoning in Reed v. 

Beachy Const. Corp., 781 N.E.2d 1145, 1150 (Ind. Ct. App. 2002), trans. denied, where we 

held that the new owners of a home who delayed possession of the premises so that it could 

be included in a home show did not owe a duty to patrons touring their newly purchased 

home during the show. Unlike Reed, where the owners of the property exhibited no control 
9

other than ownership, here the evidence reveals South Bend controlled the Property and the 

asphalt surrounding it because it maintained exclusive responsibility for its repair and 

maintenance. 

We conclude there is no genuine issue of material fact regarding whether NENC or 

NNRO exercise sufficient control over the exterior walkway of the Property to give rise to a 

duty of care. Evidence of the obligations and responsibilities assumed by each party includes 

the affidavits of several South Bend employees stating that South Bend is and has been 

exclusively responsible for the repair, replacement, modification, and maintenance of the 

Property’s structure, including the walkway on which Fletcher fell, and that South Bend has 

never requested that another organization take on any of those responsibilities. 

Further evidence includes the lease between South Bend and NNRO from when 

NNRO leased the Property in 2002 and 2003. Even if NNRO is no longer a tenant and the 

lease no longer binding,3the lease does discuss the obligations of each party. While the lease 

may not govern in these circumstances, it does provide insight into the assumed role of South 

Bend with respect to the Property: 

5. . . . [NNRO] will keep the interior of the leased premises in good repair, 

and will keep the premises in a clean and healthy condition during the term of 

this lease. . . . [South Bend] shall repair and maintain the structural portion of 

the premises, including, but not limited to, the basic plumbing, air 

conditioning, heating, and electrical systems unless such maintenance or 

repairs are caused by the act, neglect, fault or omission of [NNRO]. 

Appellants’ Appendix at 89-90. At the very least, the lease provides evidence that during its 

lease with NNRO, South Bend assumed responsibility for the structural integrity of the 

 

3

See supra note 2.
10

Property. Nothing presented by the Colemans shows that South Bend has taken any less 

responsibility or given anyone else more responsibility since the time of the lease. 

As to the courses of action of NENC and NNRO, which the Colemans rely upon in 

their contention that both organizations were in control of the Property, the actions of NENC 

amount to nothing more than the use of the Property and the actions of NNRO amount to 

nothing more than financially supporting the food pantry. These actions do not show that 

either organization was in control of the Property and the area in front of the building where 

Fletcher fell. Because loss of consortium claims are derivative in nature, see Bender v. Peay, 

433 N.E.2d 788, 790 (Ind. Ct. App. 1982), and because NENC and NNRO are entitled to 

judgment as a matter of law as to Fletcher’s negligence claim, Dorothy’s loss of consortium 

claim also fails.

Conclusion

We conclude the trial court did not abuse its discretion in denying the Colemans’ 

motion to strike portions of NNRO’s affidavits, no genuine issues of material fact exist, and 

NENC and NNRO are entitled to judgment as a matter of law. We therefore affirm.

Affirmed.

NAJAM, J., and VAIDIK, J., concur.