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.

ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:

JEFFREY S. WRAGE NELSON A. NETTLES

ANGELICA C. SCHULTIS J. KIRK LEBLANC

Blachly Tabor Bozik & Hartman, LLC LeBlanc Nettles Davis

Valparaiso, Indiana Brownsburg, Indiana

IN THE

COURT OF APPEALS OF INDIANA

CHARLES S. KOMYANEK, )

)

Appellant-Plaintiff, )

)

vs. ) No. 64A03-1407-CT-240

)

SODEXHO SERVICES OF INDIANA, )

)

Appellee-Defendant. )

APPEAL FROM THE PORTER SUPERIOR COURT

The Honorable Roger V. Bradford, Judge

Cause No. 64C01-0811-CR-11391

December 18, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge
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Case Summary

Charles Komyanek appeals the trial court’s grant of summary judgment in favor of 

Sodexho Services of Indiana (“Sodexho”). We affirm.

Issue

The dispositive issue before us is whether there is any genuine issue of material fact 

as to whether Sodexho breached a duty to Komyanek in connection with his slip-and-fall 

accident.

Facts

The evidence most favorable to Komyanek as summary judgment non-movant is 

that, in 2007, he was employed as a security guard by Porter Memorial Hospital (“the 

Hospital”). At that time, Sodexho was under contract with the Hospital to provide 

engineering services, including the maintenance and repair of floors and stairs in the 

Hospital building. Employees of Sodexho’s engineering department frequently would 

walk through the building, looking for needed repairs and submitting repair requests as 

needed. Also, one of Komyanek’s duties as security guard was to monitor the floors for 

possible tripping and slipping hazards. Komyanek walked down the Hospital’s stairwells 

on most days that he worked.

On or about April 4, 2007, while patrolling the Hospital as usual, Komyanek slipped 

on the top step of a stairwell when his foot caught on gritty residue from a missing rubber 

piece on the stair step. Komyanek managed to grab the railing to prevent himself from 

falling all the way to the landing, but he still sustained injury. Komyanek had not 

previously noticed the missing rubber piece, either immediately before his fall or on 
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previous patrols on other days. Komyanek could not say for sure whether he had walked 

in that stairwell on his previous day’s shift, although he usually did so. No other employee 

of the Hospital or Sodexho had previously reported the missing rubber piece on the step. 

Komyanek sued Sodexho, claiming he had suffered serious and permanent injury 

from the fall and that Sodexho had breached a duty to him to remedy hazardous conditions 

on the Hospital premises. Sodexho moved for summary judgment, which the trial court 

granted without explanation. Komyanek now appeals.

Analysis

Before addressing the merits, we first note Komyanek’s suggestion that we remand 

this case to the trial court to enter findings and conclusions or some kind of written 

explanation of why it granted Sodexho’s summary judgment motion. It is well-settled that 

special findings are not required in summary judgment proceedings and, even if they are 

entered, they are not binding on this court on appeal. New Albany Historic Preserv. 

Comm’n, 965 N.E.2d 79, 84 (Ind. Ct. App. 2012). Also, we will affirm a grant of summary 

judgment upon any theory supported by the designated evidence, regardless of a trial 

court’s stated theory. Henderson v. Reid Hosp. & Healthcare Servs., 17 N.E.3d 311, 315 

(Ind. Ct. App. 2014). It is true that such findings by a trial court can be helpful in our 

review, but they are not required. Id. Komyanek has cited some cases suggesting that we 

may remand for a trial court to enter specific findings and conclusions on a summary 

judgment ruling, such as Maroney v. Fraternal Order of Police Lodge No. 71, 546 N.E.2d 

99, 100 (Ind. Ct. App. 1989), trans. denied. That case, at most, indicated that it was 

“discretionary” as to whether to remand. Id. We see no reason to do so here. The record 
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before us is clear, as are the party’s arguments, and we are in as good a position as the trial 

court to determine whether there are any genuine issues of material fact and whether 

Sodexho is entitled to judgment as a matter of law.

Indeed, we review a granting of summary judgment de novo, reviewing the matter 

in the same way as the trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). 

We will affirm such a ruling only if, after drawing all reasonable inferences in favor of the 

non-moving party, the designated evidence shows that there is no genuine issue as to any 

material fact and the moving party is entitled to judgment as a matter of law. Id. “‘A fact 

is ‘material’ if its resolution would affect the outcome of the case, and an issue is ‘genuine’ 

if a trier of fact is required to resolve the parties’ differing accounts of the truth, or if the 

undisputed material facts support conflicting reasonable inferences.’” Id. (quoting 

Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009)). 

A summary judgment movant bears the initial burden of demonstrating the absence 

of any genuine issue of fact on a determinative issue. Id. If the movant does so, the nonmovant then bears the burden of coming forward with contrary evidence showing an issue 

for the trier of fact. Id. We must carefully review a grant of summary judgment to ensure 

that a party was not improperly denied its day in court. Id.

Komyanek’s claim against Sodexho is based upon negligence. In order to prove a 

negligence claim, a plaintiff must show that: (1) the defendant owed plaintiff a duty; (2) it 

breached the duty; and (3) plaintiff’s injury was proximately caused by the breach. 

Winfrey v. NLMP, Inc., 963 N.E.2d 609, 612 (Ind. Ct. App. 2012). “Summary judgment 

is rarely appropriate in negligence cases because they are particularly fact sensitive and are 
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governed by a standard of the objective reasonable person, which is best applied by a jury 

after hearing all the evidence.” Id. Regardless, summary judgment may be granted to a 

defendant if the undisputed material evidence negates one element of a negligence claim. 

Id.

The parties dispute whether Sodexho owed Komyanek a duty. Although Sodexho 

did not own or lease the Hospital property, Komyanek argues that, as a contractor placed 

in charge and control of maintaining the property, Sodexho essentially stands in the 

position of a landowner for purposes of premises liability. See Rider v. McCamment, 938 

N.E.2d 262, 267 (Ind. Ct. App. 2010) (“A general contractor, as opposed to an independent 

contractor, acting on behalf of a landowner is subject to the same liability or freedom from 

liability as the landowner.”). Sodexho counters that it did not owe Komyanek a duty with 

respect to the safety of the premises because one of Komyanek’s own duties was to look 

for and report any safety issues on the premises, including slipping and tripping hazards on 

the floor. We question whether this was sufficient to absolve Sodexho of a duty to 

Komyanek, given that Sodexho and its employees clearly had an obligation of its own to 

maintain the safety of the premises. See Sam v. Wesley, 647 N.E.2d 382, 385-86 (Ind. Ct. 

App. 1995) (holding building inspector could maintain premises liability negligence suit 

against landowner for slip-and-fall on premises while conducting safety code inspection); 

but see Turner v. Nw. Gen. Hosp., 293 N.W.2d 713, 715 (Mich. Ct. App. 1980) (holding 

hospital owed no duty to warn security guard of risk of violence because that was the very 

risk guard was hired to protect against). For purposes of this opinion, we will assume that 

Komyanek is correct and that Sodexho owed him a duty identical to a landowner with 
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respect to invitees on the property. Even so, we believe the trial court property granted 

summary judgment to Sodexho. 

Indiana follows Section 343 of the Restatement (Second) of Torts governing 

landowner liability to invitees and social guests, which states:

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.

Yost v. Wabash Coll., 3 N.E.3d 509, 515 (Ind. 2014). Under Indiana law, it is well-settled 

that, although a landowner must exercise reasonable care for the safety of invitees, the 

landowner is not an insurer of the invitee’s safety. Schulz v. Kroger Co., 963 N.E.2d 1141, 

1144 (Ind. Ct. App. 2012). In order to find a breach of duty, there must be some evidence 

that the landowner had either actual or constructive knowledge of a danger that led to an 

invitee’s injury. Id. This requirement is reflected in subsection (a) of Section 343. 

Constructive knowledge may be established by proof that a condition existed “‘for such a 

length of time and under such circumstances that it would have been discovered in time to 

have prevented injury if the [landowner], his agents or employees had used ordinary care.’” 

Id. (quoting Wal-Mart Stores, Inc. v. Blaylock, 591 N.E.2d 624, 628 (Ind. Ct. App. 1992), 

trans. denied).
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In Schulz, we held as a matter of law that a grocery store lacked constructive notice 

of a spill in one of its aisles where the aisle had been inspected by employees ten minutes 

before a customer slipped and fell, but no spill was noted at the time of inspection. Id. at 

1145. We affirmed summary judgment in the store’s favor and stated that to hold otherwise 

would improperly impose a strict liability standard on the store or require it to maintain an 

employee in every aisle at all times. Id. In Gasser Chair Co., Inc. v. Nordengreen, 991 

N.E.2d 122 (Ind. Ct. App. 2013), a casino patron was injured when the adjustable chair she 

was sitting in collapsed due to a failed gas cylinder in the chair. We affirmed the granting 

of summary judgment to the casino in the patron’s premises liability suit, holding there 

was no evidence as a matter of law that the casino had constructive notice that the chair 

might cause injury. Gasser, 991 N.E.2d at 126-27. We noted that the chairs were inspected 

daily and no problems had been reported with the chair the patron had used, that the chair 

manufacturer had not warned the casino about the danger of the gas cylinder suddenly 

failing, and that although there had been some previous problems with a very small 

percentage of chairs at the casino, none of those problems had caused injuries. Id. at 127.

Here, the undisputed designated evidence is that, despite regular walkthroughs of 

the Hospital premises, including the stairwell where Komyanek fell, no reports had been 

made to Sodexho warning of a missing rubber piece on the stairs. Komyanek himself had 

not previously noticed it. There also is no evidence that missing rubber pieces were a 

recurring problem on the Hospital’s stairs, or that they had ever been a problem for that 

matter. Komyanek did not designate evidence suggesting that anyone had in fact 

previously noticed a missing rubber piece on the stairs but failed to report it. As such, there 
8

is no evidence as to when the danger posed by the missing rubber piece arose. Komyanek 

contends, “a reasonable jury could infer that the hazard existed at least 24 hours prior to 

Komyanek’s injury.” Appellant’s Br. p. 9. Such an inference, however, could only be 

based on mere conjecture or speculation, which is insufficient as a matter of law. Smock 

Materials Handling Co. v. Kerr, 719 N.E.2d 396, 401 (Ind. Ct. App. 1999). In the complete 

absence of evidence as to when the danger here arose, it is impossible to assess whether 

Sodexho could have had constructive notice of it and had sufficient time to address the 

problem before it injured Komyanek. To allow this lawsuit to move forward with this lack 

of evidence would invite the possibility of strict liability for Sodexho and to require 24/7 

surveillance of every inch of the Hospital’s premises by Sodexho, which would be 

inappropriate. See Schulz, 963 N.E.2d at 1145. Because the designated evidence negates 

the breach of duty element of Komyanek’s cause of action, there are no genuine issues of 

material fact and Sodexho is entitled to judgment as a matter of law.

Conclusion

The trial court properly granted Sodexho’s motion for summary judgment. We 

affirm.

Affirmed.

MAY, J., and PYLE, J., concur.