## FOR PUBLICATION

A TTORNEY FOR A PPELLANT : ATTORNEY S FOR APPELLEE S : W. EDWARD SKEES RICHARD T. MULLINEAUX The Skees Law Office CRYSTAL G. ROWE New Albany, Indiana ASHLEY GILLENWATER EADE Kightlinger & Gray, LLP New Albany, Indiana


## IN THE C OURT OF APPEALS OF INDIANA

SHARON HANDY, ) ) Appellant

- Plaintiff , ) ) vs. ) No. 22 A 01

- 1403

- CT

- 125 ) P .C. BUILDING MATERIALS, INC., ) PC PROPERTIES, LLC, DAVID ) A. STEMLER , and KAREN L. STEMLER, ) ) Appellees

- Defendants

. )

APPEAL FR OM THE FLOYD CIRCUIT COURT The Honorable Susan L. Orth , Special Judge Cause No. 22C01

- 1207

- CT

- 1068

November 19, 2014

OPINION
- FOR PUBLICATION

CRONE, Judge2 Case Summary Sharon Handy appeals the trial court’s entry of summary judgment in favor of P

. C

. Building Materials, Inc., PC Properties, LLC, David A. Stemler , and Karen L. Stemler (collectively “PC”) on Handy’s negligence claim against PC

. The sole issue presented for our review is whether the trial court properly entered summary judgment i n favor of PC. Concluding that genuine issues of material fact remain for determination by a jury, we

reverse and remand for further proceedings

. Facts and Procedural History 1
Th e limited undisputed facts available for our review indicate that on Satur da y, July,
10 , 2010, Handy entered onto the P.C. Building Materials store property in New Albany. The store was open for business and Handy went to the store to shop for items for a home remodeling project. While inside the store, Handy spoke to a store sa lesperson who directed her to look at some granite countertops that were displayed outside the store. The countertops were leaning against the outside wall of the store, just to the side of the front

entrance. Handy moved the countertops around a bit and took some rough measurements before leaving the premises

. The next day, Sunday , July 11, 2010, Handy decided to return
to the store to again look at the granite and to take precise measure ments to see if the countertops might work in her remodeling proje ct. Handy was not sure whether or not the store would be open that day. The store was closed when Handy arrived. However, since the

1 We heard oral argument on October 22, 2014, at the Indiana University Mauer School of Law in Bloomington. We commend counsel for the quality of their advocacy and we thank the school for its hospitality

.3

countertops were still outside the store, Handy decided to measure them. There were at least two granite countertops lea ning against the front outside wall of the store, one right in front
of the other. After she m easured the first countertop as it leaned against the wall , Handy then pulled the first countertop forward toward her body in order to measure the second

counter top that was behind it. Because she moved the first countertop “maybe an inch or so more past its balancing point” the granite became “way too heavy.” Appell ee s ’ App. at 37. The first countertop fell over on Handy’s foot and “kicked out” the c ountertop behind it so
that it too fell on her foot. Id . at 36. Handy, who was wearing flip

- flops at the time, suffered an injury to h er toe. On July 10, 2012, Handy filed a negligence complaint against PC seeking damages for her injury

. On September 26, 2013, PC filed a motion for summary judgment and designation of evidence arguing that Handy was a trespasser on the premises, or at best a licensee, and that PC breached no duty to her as a matter of law. On November 1, 2013, Handy served her response and desig nation of evidence in opposition to PC’s motion, arguing that she was a business invitee and that a genuin e issue of material fact remained as to wheth er PC breached its duty to her

. 2 Following a hearing, the trial court granted PC’s motion for summary ju dgment. Specifically, the court concluded that because Handy entered the premises without PC’s permission, she was a trespasser to whom PC owed only a duty to

2 We note that o n October 29, 2013, Hand y filed with the trial court a “Notice of Agreed Extension of Time” sta ting that PC had agreed to an extension of time for Handy to respond to the motion for summary judgment up to and including November 1, 2013. Appellees’ App. at 44. PC did not object t o the notice or move to strike Handy’s response and designation of evidence at the time it was filed. PC similarly made no objection to the timeliness of Handy’s summary judgment response during the summary judgment hearing.4

refrain from wilfully or wantonly injuring. The trial court further concluded that, even applyi ng a higher standard of care , there was no genuine issue of material fact indicating that the countertops were a latent danger or any facts to indicate that PC should have realized that the countertops presented an unreasonable danger that Handy would not have discovered. Thus, the trial court concluded, as a matter of law, that PC did not breach any duty of care to Handy. This appeal ensued.
Discussion and Decision

Section 1

– Standard of Review and Designated Evidence Our standard of review in summary judgment cases is well settled. When reviewing the grant or denial of summary judgment, this court applies the same standard as the trial court. Specifically, we must determine whether there is a genuine issue of material fact requiring a trial and whethe r the moving party is entitled to judgment as a matter of law. Neither the trial court nor the reviewing court may look beyond the evidence specifically designated to the trial court. A party seeking summary judgment must make a prima facie showing that there are no genuine issues of material fact and that the party is entitled to judgment as a matter of law. Once the moving party satisfies this burden through evidence designated to the trial court pursuant to Trial Rule 56, the nonmoving party may not r est on its pleadings, but must designate specific facts demonstrating the existence of a genuine issue for trial. On appeal, we will assess the trial court’s decision to ensure that the parties were not improperly denied their day in court. A genuine iss ue of material fact exists where facts concerning an issue that would dispose of the litigation are in dispute or where undisputed material facts are capable of supporting conflicting inferences on such an issue. Hassan v. Begley , 836 N.E.2d 303, 306

- 07 (Ind. Ct. App. 2005) (citations omitted). “ In determining whether genuine issues of material fact exist, the court must accept as true those facts established by evidence favoring the nonmoving party and resolve all doubts against the moving party.” Id

. at 306. The trial court’s grant of a motion for summary judgment comes5

to us cloaked with a presumption of validity, Altevogt v. Brand , 963 N.E.2d 1146, 1150 (Ind. Ct. App. 2012), and the party appealing from a summary judgment decision has the burden of persuading us that the trial court’s decision was erroneous. Walker v. Martin , 887 N.E.2d 125, 130 (Ind. Ct. App. 2008), trans. denied

. In the present case, the trial court entered findings of fact and conclusions thereon in support of it entry of sum mary judgment. “Special findings are not required in summary judgment proceedings and are not binding on appeal.” Warren v. Warren , 952 N.E.2d 269 , 269 (Ind. Ct. App. 2011). However, such findings offer this Court valuable insight into the
trial court’s rationale for its review and facilitate our appellate review. Id

. PC requests that we begin our review by determining w hat evidence was properly designated to the trial court and is therefore properly before this Court. PC filed its motion for summary judgment and designation of evidence on Septemb er 26, 2013. Handy did not

serve her response and designation of evidence in opposition to summary judgment until
November 1 , 2013. 3 PC asserts that this Court should presume that the trial court, in reachi ng its decision, appropriately disregarded as untimely Handy’s response and designation of evidence in opposition to summary jud gment. Indiana Trial Rule 56(C) provides that a party opposing a summary judgment motion has thirty days after service of the m otion to serve a response and any opposing affidavits. “For cause found,” a trial court is authorized to “alter

3 The record indicates that, although Handy served her summary judgment response by mail on November 1, 2013, it was filed with the trial court on November 5, 2013. The record also indicates that Handy filed a supplemental designation of evidence on January 24, 2014.6

any time limit set forth in this rule upon motion made within the applicable time limit.” Ind. Trial Rule 56(I).
In HomeEq Servicing Corp. v . Baker , our supreme court described this as a “bright line rule” and explained, [W]here a nonmoving party fails to respond within thirty days by either (1) filing affidavits showing issues of material fact, (2) filing his own affidavit under Rule 56(F) in dicating why the facts necessary to justify his opposition are unavailable, or (3) requesting an extension of time in which to file his response under 56(I), the trial court lacks discretion to permit the party to thereafter file a response. In other word s, a trial court may exercise discretion and alter time limits under 56(I) only if the nonmoving party has responded or sought an extension of time within thirty days from the date the moving party filed for summary judgment. 883 N.E.2d 95, 98 (Ind. 2008) (quoting Desai v. Croy , 805 N.E.2d 844, 850 (Ind. Ct. App. 2004), trans. denied .). The court recently reiterated this procedural bright line rule, stating that it was now “firmly entrenched as an article of faith in Indiana law,” providing “clarity
and c ertainty to an area of law that for too long lacked both.” Mitchell v. 10th and The Bypass, LLC , 3 N.E.3d 967, 973 (Ind. 2014). Here, o n October 29, 2013, Handy ’s counsel filed with the trial court a “Notice of Agreed Extension of Time” stating t hat coun sel for PC had agreed to allow him an extension
of time to respond to the motion for sum mary judgment

. However, at no time within the thirty

- day response period did Handy ’s counsel file a request with the trial court for an
extension of ti me in which to f ile the summary judgment response. Absent a formal request
filed with and subsequently granted by the trial court, we agree with PC that the trial court was without the discretion to accept Handy’s late

- filed summary judgment response. As we7

have recogni zed in this exact context , although “we encourage collegiality among members of the legal profession and endeavor to promote cooperation and conflict resolution outside the walls of the courthouse, in certain circumstances parties must still seek formal re lief directly from the trial court.” Booher v. Sheeram, LLC , 937 N.E.2d 392, 394 (Ind. Ct. App. 2010), trans. denied (2011). T his is an example of such a circumstance. Id

. Because Handy failed to file a response to summary judgment or request an extens ion from the trial court within the prescribed time, the trial court had no discretion to alter the time limits in Trial
Rule 56 , and Handy’s response should not have been considered

. DeLage Lan den Fin. Servs., Inc. v. Cm ty

. Mental Health Ctr., Inc. , 965 N.E.2d 693, 699 (Ind. Ct. App. 2012),
trans. denied

. 4 Considering only the evidence designated by PC, t he question remains as to whether summary judgment in its favor was appropriately granted. Indeed, summary judgment “shall not be granted as a matter of course because the opposing party fails to offer opposing affidavits or evidence, but the court shall make its determination from the evidentiary matter

4 We note that PC did not file a motion to strike or otherwise object to Handy’s initial designation of evidence or the trial court’s consideratio n of the same during the summary judgment hearing . Instead, PC raises the timeliness is sue for the first time on appeal in a footnote in its appellee brief . It is well settled that a complaining party has a duty to direct the trial court’s attention to a defective filing, and failure to raise an objection constitutes waiver on appeal. See e.g. Paramo v. Edwards , 563 N.E.2d 59 5, 600 (Ind. 1990). Moreover, “[a] party may not take advantage of an error that he commits, invites, or which is the natural consequence of his own neglect or misconduct.” Countrymark Coop., Inc. v. Hammes , 892 N.E.2d 683, 695 (Ind. Ct. App. 2008), tran s. denied

. By not objecting to the timing of Handy’s initial designation of evidence, PC not only essentially invited the trial court to abuse its discretion and consider the evidence , PC has w aived its ability to assert that error on appeal. Thus, whi le we necessarily acknowledge that the trial court here should not have considered the late

- filed designated evidence , we remind PC that a party must still object to inadmissible evidence to obtain appellate review of such error . To conclude otherwise would be tantamount to treating a trial court’ s erron eous consideration of late summary judgment filings as fundamental error. Absent express direction by our supreme court, we are not incline d to do so. Nevertheless, as we conclude , notwithstanding PC’s waive r of the issue and even considering solely the evidence designated by PC, summary judgment is inappropriate.8

designated to the court.” Ind. Trial Rule 56(C). Summary judgment is appro priate only if the
desi gnated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to ju dgment as a matter of law. South Shore Baseball, LLC
v. DeJesus , 11 N.E.3 d 903, 907 (Ind. 2014). Handy’s complaint sounds in negligence. To prevail on a claim of negligence, the plaintiff must prove: (1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty by the defendant, and (3) an injury to the plaintiff as a proximate result of the breach. Key v. Ha milton , 963 N.E.2d 573, 579 (Ind. Ct. App. 2012), trans. denied . S ummary judgment is rarely appropriate in negligence cases because they are particularly fact sensitive and are “governed by a standard of the objective reasonable person

— one best applied by the jury after hearing all of the evidence.” Rhodes v. Wright , 805 N.E.2d 382, 387 (Ind. 2004). Still, summary judgment is appropriate when the undisputed material evidence negates an element of the plaintiff’s claim. Id . at 385.

Section 2

– Premises Liability and Duty Handy asserts that summary judgment was inappropriate because genuine issues of material fact remain regarding h er status on the premises and PC ’s corresponding duty of

care. We agree. A person entering upon the land of another enter s as an invitee, a licensee, or a trespasser. Rhoades v. Heritage Invs., LLC , 839 N.E.2d 788, 791 (Ind. Ct. App. 2005), trans.
denied (2006). “The person’s status on the land defines the nature of the duty owed by the
landowner to the visitor.” Huffman v. Dexter Axle Co. , 990 N.E.2d 947, 952 (Ind. Ct. App.9

2013) (quoting Rhoades , 839 N.E.2d at 791). As a general rule, a person’s status on the land, along with the duty owed by the landowner, is a matter left to the determination of the trial
court and no t the jury. Winfrey v. NLMP, Inc. , 963 N.E.2d 609, 613 (Ind. Ct. App. 2012). However, a person’s status on the land may turn on factual issues that must be resolved by the trier of fact, thereby precluding disposition by summary judgment. Kopcz ynski v. Barger , 887 N.E.2d 928, 931 (Ind. 2008). Such is the case here. We have summarized the nature of the duty owed to vis i tors as follows: The highest duty of care is owed to an invitee; that duty being to exercise reasonable care for the invitee’s protect ion while he or she is on the premises. As to a licensee, the duty is to refrain from willfully or wantonly injuring him or her or acting in a manner to increase his or her peril; this includes the duty to warn a licensee of any latent (non

- obvious) dange r on the premises of which the landowner has knowledge. Finally, the duty owed to a trespasser is the duty merely to refrain from wantonly or willfully injuring him or her after discovering his or her presence. An invitee is a person who is invited to e nter or remain on another’s land. There are three categories of invitee: the public invitee, the business visitor, and the social guest. Licensees and trespassers are persons who enter the land of another for their own convenience, curiosity, or enterta inment and take the premises as they find them. Unlike trespassers, however, licensees have a privilege to enter or remain on the land by virtue of the landowners or occupier’s permission or sufferance. In determining whether an individual is an invitee or licensee, the distinction between the terms “invitation” and “permission” is critical. Yates v. Johnson Cnty. Bd. of Co mm’rs , 888 N.E.2d 842, 848

- 49 (Ind. Ct. App. 2 008) (citations and some quotation marks omitted).
In Burrell v. Meads , 569 N.E.2d 637 , 642

- 643 (1991), our supreme court formally adopted the “invitation test” as the analytical basis for deciding which visitors will be granted
invitee status, concluding that “examination of the invitation itself must be the first step of10

any inquiry into invitee status.” Id

. “An invitation differs from mere permission in this: an invitation is conduct which justifies others in believing that the possessor desires them to enter the land; permission is conduct justifying others in believing that the possess or is willing that they shall enter if they desire to do so.” Androusky v. Walter , 970 N.E.2d 687,
691

- 92 (Ind. Ct. App. 2012) (quoting Christmas v. Kindred Nursing Ctr. Ltd. P’ship , 952 N.E.2d 872, 879 (Ind. Ct. App. 2011) (citation omitted)). The decisi ve factor in determining
whet her a landowner has extended an “invitation” or “permission” is the interpretation that a reasonable person would put upon the landowner’s words and actions given all of the surrounding circumstances. Rhoades , 839 N.E.2d at 79 2. “An invitation may be express or implied.” Yates , 888 N.E.2d at 849. “ If a landowner induces a person to enter land by express or reasonably implied invitation, then the landowner leads that guest to believe that the land has been prepared for his or her safety. ” Id. Based upon the li mited designated facts , we can affirmatively conclude that Handy was not a trespasser. We respectfully disagree with the trial court and conclude that the m ere fact that Handy did not have express verbal permission fro m PC to enter the premises on that Sunday did not make her a trespasser. We further disagree with PC’s assertion that the fact
that the store was closed when Handy entered onto the property is dispositive as to Handy’ s11

status

. 5 Although the store wa s clo sed, a reasonable trier of fact could infer that PC left the countertops displayed just outside the front entrance of the store for the purpose of attract ing members of the public and potential customers to view and consider purchasing those items. 6
There is no indication in the record that access to the displayed items was in any way altered or limited by the fact that the store was closed. It may reasonably be inferred that, had PC not wished to attract potential custome rs when its store was closed, it w ould have moved the countertops away from any type of public access

. It is undisputed that Handy entered onto the property to view the countertops for potential purchase, the exact purpose for which they were displayed , and not simply for her

own conve n ience and curiosity. On its face, PC’s conduct justifie d others in believing that
PC was willing to have them enter the premises if they desire d to do so. Thus, at a minimum, Handy was a licensee with the privilege to enter the premises by virtue of PC’s permission or
sufferance. The question becomes whether that privilege was also extended by invitation.

5 PC repeatedly emphasizes the fact that the store was closed when Handy entered onto the property and cites to Taylor v. Duke , 713 N.E.2d 877 (Ind . Ct. App. 1999) , as support for its position that she was a trespasser or, at most, a licensee . In Taylor , we held that a homeless teenager who sought shelter under a trailer parked against the back of a closed store in the loading dock area was a trespa sser. Id . at 881. Our conclusion , however, was in no way contingent upon the fact that the store was closed but rather was based upon the fact that the plaintiff entered the premises solely for his own convenience (seeking shelter) and no t for any purpos e for which the premises were generally h eld open to the public. Id

. We find the facts of Taylor wholly inapposite to this case.

6 PC takes issue with the phrase “public display” used by Handy in her brief and argues that the designated evidence “does n ot support the idea that these two granite countertop pieces were on public display .” Appellee s ’ Br. at 16

- 17 n. 12. Construing the facts favorable to Handy, we conclude that “public display” is a reasonable description of how the countertops were stored just outside the front entrance of the building.12

Handy urges that she w as an invitee /business visitor 7 and that she was impliedly invited onto the PC premises

. B ased upon the limited record before us , we cannot determine
as a matter of law whether Handy had an implied invitation to enter onto the premises, or merely permission to do so. That is to say, viewing the evidence favoring Handy and resolving all doubts against PC, genuine issues of mater ial fact remain as to whether PC engaged in conduct which would have justified a reasonable person in Handy’s position in believing that PC desired her to enter onto the premises , thus making her an invitee. Under
the circumstances , PC has not met its bur den of demonstrating that it is entitled to judgment
as a matter of law as to Handy’s status on the premises

.

Section 3

– Premises Liability and Breach PC maintains that, even assuming that H andy qualified as an invitee and was owed the highest duty of re asonable care , such duty was not breach ed by PC as a matter of law

. The question of whether there has been a breach of duty in a negligence action is generally a jury question and inappropriate for resolution by summary judgment. N. Ind. Pub. Serv. Co. v

. Sharp , 7 90 N.E.2d 462, 466 (Ind. 2003). Indeed, w hether a duty of care has been breached is only a question of law when the facts are undisputed and only one inference can be drawn
from them. Id

. W e cannot say that t he limited facts before us lead t o but one inference.

7 A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land. Burrell , 569 N.E.2d at 642 ( citing the R ESTATEMENT (S ECOND ) OF T ORTS § 332).13

Indiana has adopted the Restatement (Second) of Torts Section 343 , which provides
that a possessor of land is subject to liability for physical harm caused to his invitees by a
cond ition on the land if, but only if, he (a) knows or by the exercise of reasonable car e 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 a gainst it, and (c) fails to exercise reasonable care to protect them against the danger. Burrell, 569 N.E.2d at 639

- 40 (quoting R ESTATEMENT (S ECOND ) OF T ORTS § 343 (1965)).
All three conditions set forth in Section 343 must be met for liability to attac h. Harradon v. Schlamadinger, 913 N.E.2d 297, 301 (Ind. Ct. App. 2009), trans. denied (2010). Additionally, Section 343A of the Restatement (Second) of Torts, which discusses known or obvious dangers , is meant to be read along with Section 343. Christma s , 952 N.E.2d at 881.
That Section “provides, in part, as follows: ‘ A possessor of land is not liable to his invitees for physical harm caused to them by any ... condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or
obviousness. ’” Id. (citing Smith v. Baxter, 796 N.E.2d 242, 245 (Ind. 2003) (quoting
R ESTATEMENT (S ECOND ) OF T ORTS § 343A) )

. Indeed, ‘“[t] he comparative knowledge of a possessor of land and an invitee regardin g known or obvious dangers may properly be taken into consideration in determining whether the possessor breached the duty of reasonable care under Sections 343 and 343A of the Restatement (Second) of Torts. ’ ” Id. (quoting Smith , 796
N.E.2d at 245 )

.14

Here , reasonable people could differ as to whether the granite countertops represented
a known or obvious danger to Handy. Moreover, the obviousness of any danger does not resolve the issue, see Rhodes , 805 N.E.2d at 388 , as questions remain whether PC : (1) kne w or by the exercise of reasonable care should h ave realized that the granite involved an unreasonable risk of harm to Handy; (2) should have expected that she would not realize the unreasonable risk of harm of moving, pulling, or tipping the granite forwa rd; and (3) failed to
exercise reasonable care to protect her against th e danger. In short, assuming that Handy was an invitee on the premises, genuine issue s of material fact remain as to whether PC br eached its duty of care to her

. Based on the foregoi ng, the trial court erred when it entered summary judgment in
favor of PC. We are mindful that even if t his Court believes that the non moving party will not be successful at trial, summary judgment should not be granted where material facts
conflict or co nfli cting inferences are possible. Dunaway v. Allstate Ins. Co. , 813 N.E.2d 376, 384 (Ind. Ct. App. 2004). Therefore, we reverse the trial court’s entry of summary judgment and remand for further proceedings consistent with this opinion.
Reversed and r emanded. MATHIAS, J., concurs. RILEY, J., concurs in par t and dissents in part with opinion.15 

## IN THE COURT OF APPEALS OF INDIANA

SHARON HANDY, ) ) Appellant

- Plaintiff, ) ) vs. ) No. 22A01

- 1403

- CT

- 125 ) P.C. BUILDING MATERIALS, INC., ) PC PROPERTIES, LLC, DAVID A. ) STEMLER, and KAREN L. STEMLER, ) ) Appellees

- Defendants. )

RILEY, Judge, concurring in part and dissenting in part While I agree with the majority’s conclusion regard ing the extent of the designated
evidence available for our review, I respectfully dissent from its conclusion that a genuine
issue of material fact remains as to Handy’s status on the premises and PC’s corresponding duty of care. Although the majority could “affirmatively conclude that Handy was not a trespasser,” based on “the limited record,” it could not determine “as a matter of law whether Handy had an implied invitation to enter onto the premises, or merely permission to do so.” Slip op. pp. 10, 12. Finding that the question of Handy’s st atus is a matter of law , my analysis of the designated evidence is in line with the trial court’s conclusion that Handy is “a trespasser,” or at best, a licensee. See Appellant’s App. p. 10; Morningstar v. Maynard , 798 N.E.2d 920,16

922 (Ind. Ct. App. 2003) . “Even if considering a stricter standard, [PC] has not presented a genuine issue that the countertops were a latent danger, and further nothing to indicate that [PC] could have realized the countertops presented an unreasonable danger that [Handy]
would have discovered.” Appellant’s App. p. 10. I would affirm the trial court’s summary judgment in every respect.