Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CT-505 | July 24, 2015 Page 1 of 12

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

L. Matthew Nixon

Fair, Nixon & Nixon

Princeton, Indiana

ATTORNEYS FOR APPELLEE

Anthony M. Eleftheri

Wandini B. Riggins

Lewis Wagner, LLP

Indianapolis, Indiana 

I N T H E

COURT OF APPEALS OF INDIANA

Charles Bradley Nixon,

Appellant-Plaintiff,

v.

JNJ Foods, LLC

d/b/a McDonald’s,

Appellee-Defendant.

July 24, 2015

Court of Appeals Case No.

82A01-1411-CT-505

Appeal from the Vanderburgh 

Superior Court.

The Honorable Mary Margaret 

Lloyd, Judge.

Cause No. 82D03-1309-CT-03990

Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CT-505 | July 24, 2015 Page 2 of 12

[1] Charles Bradley Nixon appeals the trial court’s grant of summary judgment in 

favor of JNJ Foods, LLC d/b/a McDonald’s (JNJ) on Nixon’s complaint for 

damages for injuries suffered after biting into food that allegedly contained a 

foreign object. Finding that there are genuine issues of material fact rendering 

summary judgment improper, we reverse and remand for further proceedings.

Facts

[2] On March 12, 2012, during the early morning hours, Nixon, while working the 

third shift for the Gibson County Sheriff’s Department, purchased two sausage 

and cheese breakfast sandwiches from a McDonald’s located in Evansville. 

Nixon took a bite of one of the breakfast sandwiches and his tooth struck 

something hard, causing the tooth to crack. Nixon was in so much pain from 

the cracked tooth that he could not finish his shift. In a message to dispatch,

Nixon stated: “I just broke my F---ing tooth on a sausage muffin..[Bite] all 

jacked up I’m going home...Painful.” Appellant’s App. p. 81 (capitalizations 

and punctuation original). Later that morning, Nixon saw his dentist, who 

confirmed Nixon had cracked a tooth and advised that the tooth needed to be 

extracted. As a result of losing the tooth, Nixon had to undergo a bone graft to 

prepare the socket for a tooth implant.

[3] Nixon filed his complaint for damages against JNJ on September 9, 2013, and 

JNJ timely responded. On November 1, 2013, the trial court ordered the 
Court of Appeals of Indiana | Memorandum Decision 82A01-1411-CT-505 | July 24, 2015 Page 3 of 12

parties to mediation.

1

 On July 1, 2014, JNJ filed its motion for summary 

judgment, brief in support thereof, and designated materials, which included 

Nixon’s deposition. The basis for JNJ’s motion for summary judgment was 

Nixon could not designate any specific factual evidence that would establish the 

causation element of his negligence claim. Nixon filed his response to JNJ’s 

motion for summary judgment and his designated evidence on July 29, 2014. 

The trial court held a telephonic hearing on JNJ’s motion for summary 

judgment on October 15, 2014. On October 22, 2014, the trial court summarily 

granted summary judgment in favor of JNJ. Nixon now appeals.

Discussion and Decision

[4] Nixon argues the trial court erred in granting summary judgment in favor of 

JNJ. Our standard of review on summary judgment is well established:

We review summary judgment de novo, applying the same standard as 

the trial court: “Drawing all reasonable inferences in favor of . . . the 

non-moving parties, summary judgment is appropriate ‘if the 

designated evidentiary matter shows that there is no genuine issue as 

to any material fact and that the moving party is entitled to judgment 

as a matter of law.’ ” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind.

2009) (quoting T.R. 56(C)). “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. (internal citations omitted).

The initial burden is on the summary-judgment movant to 

“demonstrate [ ] the absence of any genuine issue of fact as to a 

 

1

It is unclear whether the parties ever submitted to mediation.
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determinative issue,” at which point the burden shifts to the nonmovant to “come forward with contrary evidence” showing an issue 

for the trier of fact. Id. at 761–62 (internal quotation marks and 

substitution omitted). And “[a]lthough the non-moving party has the 

burden on appeal of persuading us that the grant of summary 

judgment was erroneous, we carefully assess the trial court’s decision 

to ensure that he was not improperly denied his day in 

court.” McSwane v. Bloomington Hosp. & Healthcare Sys., 916 N.E.2d 

906, 909–10 (Ind. 2009) (internal quotation marks omitted).

[5] Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). “Summary judgment is 

rarely appropriate in negligence cases because they 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-S. Bend, Inc., --- N.E.3d ---, No. 71S03-1506-CT-350 (Ind. 

June 3, 2015).

[6] Our Supreme Court has very recently cautioned that “[a]s long as competent 

evidence has been designated in response to a summary judgment motion, . . . 

‘weighing [the evidence]—no matter how decisively the scales may seem to 

tip—[is] a matter for trial, not summary judgment.’” Stafford v. Szymanowski, ---

N.E.3d ---, No. 89S01-1502-CT-64, at *4 (Ind. June 2, 2015) (quoting Hughley v. 

State, 15 N.E.3d 1000, 1005-06 (Ind. 2014)). In other words, if any weighing of 

evidence—of the facts—is required, then summary judgment is inappropriate.

[7] In this case, Nixon provided the following deposition testimony:

Q: How do you know you bit down on something hard?

A: Because it broke my tooth in half.

Q: So you were assuming there was something in your sandwich 

because it broke your tooth?
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A: Yes, I’m not assuming. There was something in my sandwich 

that broke my tooth in half. There is no assumption to that.

Q: How do you know there was something that shouldn’t have 

been in your sandwich?

A: Because I bit down on something hard. If you’re eating 

mashed potatoes and bite down on a rock, you know there is a 

rock in your mashed potatoes. You know there is something 

hard in something that is supposed to be soft.

Q: Okay. So your testimony is you were in the process of chewing 

and you bit down and you felt pain in your tooth?

A: I bit down on something hard that caused pain in my tooth.

Q: And is it your testimony you recall feeling something in the 

sandwich?

A: I bit down on something hard that was not supposed to be in 

the sandwich that broke my tooth.

***

Q: Do you have any proof, sir, that there was a foreign object in 

the sandwich?

A: Yes.

Q: What proof?

A: It broke my tooth.

Q: So you’re assuming that there had to be a foreign object 

because your tooth broke?

A: I’m not assuming. A sausage McMuffin, normal, average 

sausage McMuffin does not have hard objects in it that is 

capable of breaking a person’s tooth.

***

Q: Sir, I understand your testimony that you bit down on 

something that you believe was a hard, foreign object.

A: I know it was, because it broke my tooth.

[8] Appellant’s App. p. 69.
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[9] It is well accepted that “[u]nder Indiana summary judgment procedure, a 

nonmovant is not required to come forward with contrary evidence until the 

party seeking summary judgment demonstrates the absence of a genuine issue 

of material fact.” Kennedy v. Murphy, 659 N.E.2d 506, 508 (Ind. 1995). In other 

words, “[m]erely alleging that the plaintiff has failed to produce evidence on 

each element [of a cause of action] is insufficient to entitle the defendant to 

summary judgment under Indiana law.” Deuitch v. Fleming, 746 N.E.2d 993 

(Ind. Ct. App. 2001).

[10] Here, JNJ argues that because Nixon is unable to produce the hard object itself, 

there is no designated evidence creating a genuine issue of material fact. 

Kennedy and Deuitch, among myriad other cases, establish that this argument is 

insufficient to entitle JNJ to summary judgment. Instead, JNJ must prove the 

absence of a genuine issue of material fact with respect to each element of 

Nixon’s negligence claim, which it has failed to do.

[11] In any event, we disagree with JNJ’s contention that Nixon’s evidence is 

insufficient. As JNJ’s brief itself argues, “the designated materials support a 

finding that an alternative cause is more likely.” Appellee’s Br. p. 9 (emphasis 

added). Whether one cause is “more likely” than another is quite clearly a 

question of fact that must be answered by a factfinder. Nixon’s testimony, 

alone, is sufficient evidence of his negligence claim to create a material issue of 

fact rendering summary judgment inappropriate. Whether his testimony alone 

is sufficient to prove his claim is a question that must be answered by a 

factfinder, but it is, at the least, enough to survive on summary judgment.
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[12] In this case, there are multiple issues of material fact that must be determined 

by a factfinder. It was improper to enter summary judgment in favor of JNJ as 

a matter of law.

[13] The judgment of the trial court is reversed and remanded for further 

proceedings.

Najam, J., concurs, and Friedlander, J., dissents with opinion.
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I N T H E

COURT OF APPEALS OF INDIANA

Charles Bradley Nixon,

Appellant-Plaintiff,

v.

JNJ Foods, LLC

d/b/a McDonald’s,

Appellee-Defendant.

Court of Appeals Case No.

82A01-1411-CT-505

Friedlander, Judge, dissenting.

[14] I believe the trial court correctly granted summary judgment in favor of JNJ, 

and therefore respectfully dissent.

[15] Nixon’s action alleges negligence on JNJ’s part. The three elements of 

negligence are a duty owed to the plaintiff by the defendant, a breach of that 

duty by the defendant, and injury to the plaintiff proximately caused by that 

breach. Kincade v. MAC Corp., 773 N.E.2d 909 (Ind. Ct. App. 2002). 

“Negligence will not be inferred; rather, all of the elements of a negligence 

action must be supported by specific facts designated to the trial court or 
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reasonable inferences that might be drawn from those facts.” Id. at 911. An 

inference resting on no more than speculation or conjecture is not a reasonable 

inference. Kincade v. MAC Corp., 773 N.E.2d 909. Negligence will not be 

inferred from the mere fact of an accident, absent special circumstances. 

Hayden v. Paragon Steakhouse, 731 N.E.2d 456 (Ind. Ct. App. 2000). 

[16] Nixon repeatedly confirmed in his deposition testimony that he cannot confirm, 

much less identify existence of a foreign object, as he did not see, examine, or 

preserve one, e.g.:

Q: Did you see [the alleged foreign object], sir?

A: No.[2]

Q: Has anyone seen it?

A: No.

Q: Did you make any efforts to preserve what it was?

A: No.

Appellant’s Appendix at 42. In fact, Nixon admitted that the only proof that a 

foreign object existed was the injury itself:

Q: Do you have any proof, sir, that there was a foreign object in the 

sandwich?

A: Yes.

Q: What proof?

A: It broke my tooth.

 

2 Nixon explained that the reason he did not make an effort to preserve the alleged foreign object was because 

at the time, he “didn’t know how much damage there was.” Appellant’s Appendix at 42. Nixon also conceded 

that “sometimes teeth break for other reasons unrelated to being a foreign object in food,” and yet, he 

maintains that his broken tooth could only have resulted from a foreign object in his breakfast sandwich. Id.
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Id. at 42. Here, there is no question of fact. Nixon admits that he has no 

physical proof that a foreign object was present in his breakfast sandwich. To 

be sure, the only “proof” Nixon has that any such foreign object ever existed in 

his food is that “[i]t broke [his] tooth.” Id. This “proof” entirely begs the 

question. Thus, Nixon’s self-serving claim that his broken tooth could only 

have resulted from a foreign object in his sandwich is based entirely upon 

speculation and conjecture. 

[17] This court has routinely upheld the grant of summary judgment in favor of 

defendants where the plaintiff is unable to identify the cause of the alleged 

injury without resorting to speculation. In Hayden v. Paragon Steakhouse, 731 

N.E.2d 456, the plaintiff fell outside of the restaurant on a snowy day. The 

plaintiff’s only support for his claim was that his feet simply went out from 

underneath him. This court affirmed the grant of summary judgment in favor 

of the defendant, finding that the plaintiff would not prove negligence because 

he was unable to identify the cause of his fall and only speculated based upon 

the surrounding circumstances.

[18] This court reached a similar result in Midwest Commerce v. Livings, 608 N.E.2d 

1010 (Ind. Ct. App. 1993), wherein the plaintiff filed a complaint against her 

bank after she fell while standing in line on the bank’s premises. Because the 

plaintiff could not identify what caused her to fall, this court concluded that she 

failed to meet her burden to establish causation.
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[19] Granted, this is not a slip-and-fall scenario like those presented in Hayden and 

Midwest Commerce, but it is similar with respect to the nature of the claim. 

Indeed, I agree with JNJ that Nixon’s claim is based solely on his speculation 

that there was a foreign object in his breakfast sandwich. As noted above, pure 

speculation cannot support the causation component of a negligence claim. 

[20] The majority asserts that it was incumbent upon JNJ, as the movant, to prove 

that Nixon’s breakfast sandwich did not contain a foreign object. See slip op. at 

6 (“[m]erely alleging that the plaintiff has failed to produce evidence on each 

element [of a cause of action] is insufficient to entitle the defendant to summary 

judgment under Indiana law”). The majority would therefore require JNJ to 

meet the impossible burden of proving a negative. See Jackson v. Warrum, 535 

N.E.2d 1207, 1218 (Ind. Ct. App. 1989) (describing as “impossible” the 

“burden of proving a negative fact”). The law should not impose such an 

impossible burden upon JNJ. See Town of Montezuma v. Downs, 685 N.E.2d 108, 

116 n. 9 (Ind. Ct. App. 1997) (“[t]o require the Downs to affirmatively prove 

that the pipeline was not inspected would require them to prove a negative, 

something which we refuse to do”). Indeed, it has long been the case that 

“where a negative is essential to the existence of a right the party claiming the 

right has the burden of proving such negative.” Boulden v. McIntire, 119 Ind. 

574, 21 N.E. 445, 448 (1889). Aside from Nixon’s speculation, he admittedly 

has no evidence from which he could meet this burden if this case were 

presented to a fact-finder. As noted above, Nixon’s speculation cannot serve as 

the basis for a finding of causation.
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[21] Keeping in mind that the purpose of T.R. 56 is to “promote the expeditious 

resolution of lawsuits and conserve judicial resources,”3I believe summary 

judgment is warranted if the movant either disproves an element of the nonmovant’s claim or demonstrates that the non-moving party cannot carry its 

burden of proof at trial. JNJ demonstrated the latter. In such case, I see no 

reason to go to trial or prolong these proceedings as I believe Nixon’s claim is 

destined to fail. Accordingly, I respectfully dissent from the majority’s 

conclusion, and I would affirm the order of the trial court granting summary 

judgment in favor of JNJ. 

 

3

Pearman v. Jackson, 25 N.E.3d 772 (Ind. Ct. App. 2015) (citing Rosi v. Business Furniture Corp., 615 N.E.2d 

431 (Ind. 1993)).