Court of Appeals of Indiana | Opinion 18A-CT-1658 | March 8, 2019 Page 1 of 15

ATTORNEYS FOR APPELLANT

Daniel H. Pfeifer

James P. Barth

Pfeifer, Morgan & Stesiak

South Bend, Indiana

ATTORNEYS FOR APPELLEE

Edward L. Murphy, Jr.

Lauren R. Deitrich

Rothberg Logan & Warsco LLP

Fort Wayne, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Michelle Converse,

Appellant-Plaintiff,

v.

Elkhart General Hospital, Inc.,

Appellee-Defendant.

March 8, 2019

Court of Appeals Case No.

18A-CT-1658

Appeal from the Elkhart Circuit 

Court 

The Honorable Michael A. 

Christofeno, Judge

Trial Court Cause No.

20C01-1307-CT-119

Robb, Judge.
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Case Summary and Issue

[1] Michelle Converse appeals the trial court’s grant of summary judgment in favor 

of Elkhart General Hospital, Inc. on her claim of negligence. Converse presents 

only one issue for our review, whether the trial court erred when it granted 

summary judgment in favor of Elkhart General. Concluding the trial court 

erred in granting summary judgment in favor of Elkhart General, we reverse 

and remand. 

Facts and Procedural History 

[2] In early 2012, Converse was an employee of American Nursing Care (“ANC”), 

which conducted its home health care business from a building owned by 

Elkhart General. ANC had leased the building since July 1, 2011, and 

Converse went to the location two to three times per week to pick up or drop off 

paperwork and to attend case conferences before dismissing patients. ANC 

instructed all its employees to use the side door to enter and exit the building. 

[3] After one such conference on April 10, 2012, Converse walked from the side 

door to her car in the parking lot around 9:25 a.m. Converse was returning to 

the building on the clear, sunny morning when she spotted another nurse, Dale 

Fish, with whom she needed to speak. Converse yelled Fish’s name and 

attempted to run after him but fell on the way to Fish’s car. Converse claims 

she lost her balance when she stepped on a landscaping rock that was loose on 

the sidewalk, hit the raised concrete area adjacent to the sidewalk, stepped on 
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another rock, and fell. Converse injured her arm in the fall and required several 

surgeries. Converse claimed that she did not see the rock prior to her fall and 

had never noticed any rocks on the sidewalk before but that she observed 

scattered landscaping rocks on the sidewalk “here and there” after the fall. 

Appellant’s Appendix, Volume 2 at 134. 

[4] On July 22, 2013, Converse filed a complaint for damages against Elkhart 

General, alleging negligence on the basis of premises liability. Elkhart General 

moved for summary judgment on March 5, 2018. The trial court heard 

arguments on May 14 and granted summary judgment in favor of Elkhart 

General on June 21. Converse now appeals. 

Discussion and Decision 

I. Standard of Review 

[5] We review a summary judgment order with the same standard applied by the 

trial court. City of Lawrence Util. Serv. Bd. v. Curry, 68 N.E.3d 581, 585 (Ind. 

2017). Summary judgment is appropriate only when “the designated 

evidentiary matter shows that there is no genuine issue as to any material fact 

and that the moving party is entitled to a judgment as a matter of law.” Ind. 

Trial Rule 56(C). In the summary judgment context, we are not bound by the 

trial court’s specific findings of fact and conclusions of law. Rice v. Strunk, 670 

N.E.2d 1280, 1283 (Ind. 1996). The trial court’s findings and conclusions 

merely aid our review by providing us with a statement of reasons for the trial 

court’s actions. Id.
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[6] Moreover, our review is limited to those facts designated to the trial court, T.R. 

56(H), and we construe all facts and reasonable inferences drawn from those 

facts in favor of the non-moving party, Meredith v. Pence, 984 N.E.2d 1213, 1218 

(Ind. 2013). On appeal, the non-moving party carries the burden of persuading 

us the grant of summary judgment was erroneous. Hughley v. State, 15 N.E.3d 

1000, 1003 (Ind. 2014). A grant of summary judgment will be affirmed if it is 

sustainable upon any theory supported by the designated evidence. Miller v. 

Danz, 36 N.E.3d 455, 456 (Ind. 2015).

II. Premises Liability

[7] To prevail on a claim of negligence, Converse must establish: (1) Elkhart 

General owed a duty to Converse; (2) Elkhart General breached that duty by 

allowing its conduct to fall below the applicable standard of care; and (3)

Elkhart General’s breach of duty proximately caused a compensable injury to 

Converse. Rhodes v. Wright, 805 N.E.2d 382, 385 (Ind. 2004). 

[8] Before proceeding to the merits of the parties’ arguments, however, we pause to 

emphasize Indiana’s unique summary judgment standard. Contrary to the

federal standard which permits the moving party to merely show the party 

carrying the burden of proof lacks evidence on a necessary element, Indiana law 

requires the moving party to “affirmatively negate an opponent’s claim.” 

Hughley, 15 N.E.3d at 1003 (quotation omitted). Or, to put it more simply, 

Indiana law requires a movant to prove their opponent would lose, rather than 

simply showing their opponent is unlikely to win. If, and only if, the movant 
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sustains this burden does the burden shift to the opponent to set forth specific 

facts showing that there is a genuine issue of material fact. Markley Enters., Inc. 

v. Grover, 716 N.E.2d 559, 564 (Ind. Ct. App. 1999). If the movant fails in their 

initial burden or the non-movant successfully designates evidence establishing a 

genuine issue of material fact, summary judgment must be denied. Hughley, 15 

N.E.3d at 1004 (noting “Indiana consciously errs on the side of letting marginal 

cases proceed to trial on the merits, rather than risk short-circuiting meritorious 

claims.”) And, with this “more onerous burden[,]” id. at 1003, in mind, we 

turn to the parties’ arguments. 

[9] Converse’s status at the time of the accident was an invitee. Under Indiana 

premises liability law, a landowner owes the highest duty to an invitee: the duty 

to exercise reasonable care for his protection while he is on the landowner’s 

premises. Burrell v. Meads, 569 N.E.2d 637, 639-40 (Ind. 1991). This duty 

extends to keeping a parking lot safe and providing a safe and suitable means of 

ingress and egress. Vernon v. Kroger Co., 712 N.E.2d 976, 979 (Ind. 1999). 

[10] “When a physical injury occurs as a result of a condition on the land, the three 

elements described in Restatement (Second) of Torts Section 343, accurately 

describe the landowner-invitee duty.” Rogers v. Martin, 63 N.E.3d 316, 322-323 

(Ind. 2016). Section 343 provides:

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
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(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.

A. Unreasonable Risk of Harm

[11] Applying Section 343 to the facts presented here, the trial court concluded 

Converse failed to designate evidence that the landscaping rocks on the 

sidewalk presented an unreasonable risk of harm. See Appealed Order at 6, ¶ 

19. In light of our more onerous summary judgment standard, however, we 

must disagree. 

[12] On summary judgment, Elkhart General designated the following evidence 

from Converse’s testimony: 

(1) Converse admits she normally looks where she is walking;

(2) before the incident, on a clear day, she never saw the rock;

(3) after the fall she saw some scattered rocks on the sidewalk 

and similar landscaping rocks adjacent to the sidewalk; 

and
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(4) she failed to take basic safety measures that are 

appropriate in just about any situation, such as looking 

where you’re walking.

Appellant’s App., Vol. 2 at 49. Elkhart General then argued these statements 

“preclude any reasonable inference that the rock posed an ‘unreasonable’ 

danger.” Id. But, rather than affirmatively negating Converse’s claim and 

demonstrating that no genuine issue of material fact remained, Elkhart 

General’s designated evidence actually highlighted several disputes of fact on its 

face, namely: whether Converse was looking where she was walking at the 

time of her fall and whether the landscaping rocks posed an unreasonable 

danger even to those exercising basic safety measures. 

[13] Regardless, even if we were to assume this evidence shifted the burden to 

Converse to designate evidence that the condition posed an unreasonable risk of 

harm, Elkhart General was still not entitled to summary judgment. A condition 

poses an unreasonable risk of harm when there is a “sufficient probability of a 

harmful event occurring that a reasonably prudent person would have foreseen 

it or some similar event as likely to happen.” Cty of Cameron v. Brown, 80 

S.W.3d 549, 556 (Tex. 2002). And, in response to Elkhart General’s motion, 

Converse designated evidence that Elkhart General decorated the area next to 

the sidewalk with rocks of a similar color as the sidewalk and that Elkhart 

General failed to install a border or barrier to keep the rocks from littering the 

sidewalk. Converse then slipped and fell on a rock that she did not see, she 

suspects, because the color blended together. This evidence was sufficient, even 
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if minimally so, to present a question of fact as to whether Elkhart General 

knew or should have known that if the rocks were to litter the sidewalk, they 

would create an unreasonable risk of harm. Moreover, because of the similarity 

in color, this evidence also presents a question of whether Elkhart General 

should have expected invitees to fail to discover the danger or protect 

themselves from it. See Rhodes, 805 N.E.2d at 387.

[14] Elkhart General could have designated evidence in the form of an affidavit, 

expert opinion, or other evidence that established the landscaping rocks did not 

pose an unreasonable risk of harm. However, because it failed to do so, the 

burden never shifted to Converse, and the trial court therefore erred in granting 

summary judgment.

B.Actual or Constructive Knowledge

[15] Next, Elkhart General designated parts of Converse’s testimony to argue she 

lacked “evidence showing that any other person associated with Elkhart 

General Hospital was aware of any issues related to the alleged condition prior 

to the trip-and-fall.” Appellant’s App., Vol. 2 at 50; see Carmichael v. Kroger Co., 

654 N.E.2d 1188, 1191 (Ind. Ct. App. 1995) (noting that as an invitor is not the 

insurer of the invitee’s safety, an invitor must have actual or constructive 

knowledge of the danger before liability may be imposed), trans. denied. Once 

again, Elkhart General’s argument misunderstands Indiana’s summary 

judgment standard. Indeed, “it is well-settled that merely alleging that the 

plaintiff has failed to produce evidence on each element of a claim is insufficient 
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to entitle the defendant to summary judgment under Indiana law.” J.H. v. St. 

Vincent Hosp. and Health Care Ctr., Inc., 19 N.E.3d 811, 818 (Ind. Ct. App. 2014) 

(citing Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 

(Ind. 1994)). 

[16] In this regard, a good example of a defendant meeting Indiana’s burden on 

summary judgment was presented in Schulz v. Kroger Co., 963 N.E.2d 1141 (Ind. 

Ct. App. 2012). There, a customer slipped and fell on a clear liquid near a 

Seven-Up display. The customer brought suit against Kroger and the trial court 

eventually granted summary judgment in Kroger’s favor. On appeal, we

concluded Kroger had designated sufficient evidence to establish that it lacked 

actual or constructive knowledge of the condition and that Kroger had therefore

affirmatively negated an element of the customer’s claim. Specifically, Kroger 

designated an affidavit stating that no Kroger employee had been notified of the 

spill near the Seven-Up display. Therefore, in the absence of any evidence to 

the contrary, we concluded Kroger had established that it “did not have actual 

knowledge of the hazardous condition.” Id. at 1144. 

[17] The affidavit also stated that pursuant to Kroger’s policies, an employee had 

been in the area of the spill within five to ten minutes of the fall and that there 

was no clear liquid on the floor. Noting that constructive knowledge is defined 

as a “condition which has 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 storekeeper, his agents or employees had used ordinary care[,]” id. 

at 1144, we explained:
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It is evident from the designated evidence before us that the 

window of time between a Kroger employee being present in the 

area where [the customer] fell and [the customer’s] fall was ten 

minutes at most. Ten minutes prior to her fall, the floor was 

clean and dry. Short of imposing a strict liability standard or 

mandating an employee’s presence in every aisle at all times, we 

conclude that there is no genuine issue of fact in the case before 

us that Kroger did not have constructive knowledge of the 

hazardous condition.

Id. at 1145. 

[18] Similarly here, Elkhart General could have designated an affidavit 

demonstrating that it lacked actual or constructive knowledge of the condition. 

But, once again, Elkhart General failed to affirmatively negate this element of 

Converse’s claim and summary judgment on this issue was improper.

C. Known and Obvious Condition

[19] Next, Converse argues the trial court erred in concluding the landscaping rock 

was a “known and obvious” condition. See Appealed Order at 5, ¶ 17. We 

agree.

[20] The Restatement instructs that Section 343 should be read together with Section 

343A. Restatement § 343, cmt. a. Section 343A(1) provides:

A possessor of land is not liable to his invitees for physical harm 

caused to them by any activity or condition on the land whose 

danger is known or obvious to them, unless the possessor should 

anticipate the harm despite such knowledge or obviousness.
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See, e.g., Rhodes, 805 N.E.2d at 387 (quoting Restatement § 343A(1)). A 

condition on the land or premises is “known” if the plaintiff is both aware of the 

condition and appreciates its danger. Restatement § 343A, cmt. b. A condition 

is “obvious” if both the condition and the risk are apparent to, and would be 

recognized by, a reasonable person in the position of the visitor exercising 

ordinary perception, intelligence, and judgment. Id. 

[21] Our supreme court recently addressed the issue of known and obvious 

conditions in Roumbos v. Samuel G. Vazanellis & Thiros & Stracci, PC, 95 N.E.3d 

63 (Ind. 2018). There, a client brought a legal malpractice action against a law 

firm for missing the deadline to file her premises liability action against a 

hospital where she was injured after tripping on cords lying on the floor. Under 

the “trial-within-a-trial” doctrine, the law firm invoked the defense that the 

hospital would have asserted:

that the hospital did not breach its duty under premises-liability 

law because [the client’s] fall was caused by a known or obvious 

condition: the wires and cords lying on the floor on which [the 

client] allegedly tripped. 

Id. at 64. Because the client had provided evidence that the wires were 

unknown to her, the issue turned on whether the condition was “obvious.” Id. 

at 67. Our supreme court explained:

The second prong of our Section 343 analysis asks a similar 

question about the obviousness of the condition, but does so from 

the perspective not of the invitee but of the landowner. Section 

343 considers whether the landowner should expect that invitees 
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will fail to discover or realize the danger, or will fail to protect 

themselves against it. When analyzing breach of duty under 

Section 343, we evaluate a landowner’s knowledge under an 

objective, reasonable-person standard. See Smith v. Baxter, 796 

N.E.2d 242, 244 (Ind. 2003). Thus, the same analysis applies, 

whether viewed from the landowner’s perspective under Section 

343 or from the invitee’s under Section 343A. Either way, it is 

an issue of reasonableness: What should the landowner expect 

will not be discovered under Section 343? And what should be 

obvious to the invitee under Section 343A?

Whether a risk is obvious is a question courts can sometimes 

resolve on summary judgment. For example, we found no issue 

of material fact regarding a golf-course operator’s objectively 

reasonable expectation that persons on the course would “realize 

the risk of being struck by an errant golf ball and take appropriate 

precautions.” Pfenning v. Lineman, 947 N.E.2d 392, 406 (Ind. 

2011). Viewed through the lens of Section 343A, we could also 

say that the risk of errant golf balls is apparent to and recognized 

by a reasonable person on a golf course exercising ordinary 

perception, intelligence, and judgment. 

We have likewise held that a professional baseball club would 

have no reason to believe that a spectator in the stands would not 

realize the danger of or fail to protect herself from foul balls 

entering the stands. S. Shore Baseball, LLC v. DeJesus, 11 N.E.3d 

903, 910 (Ind. 2014) (holding that danger’s obviousness was 

highlighted by warning printed on her ticket, warning sign in 

aisle near her seat, and public-address announcement made 

before beginning of game). From the vantage point of the 

reasonable invitee, the risk of baseballs entering the stands was 

obvious.

Unlike the obvious risks in those cases, however, we conclude 

that a material factual dispute remains here: Does the firm’s 

designated evidence establish that the various wires on the 
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hospital-room floor and the risks they pose would be apparent to 

a reasonable person? Construing the designated facts most 

favorably to [the client] and drawing all reasonable inferences in 

her favor, we hold that a jury could reasonably find the wires 

were not obvious to the ordinary reasonable person in [the 

client’s] position.

Id. at 67-68. 

[22] Returning to the facts presented here, the evidence establishes that Converse did 

not see the rock and she did not know of any rocks on the sidewalk before that 

point. See Appellant’s App., Vol. 2 at 133; Meredith, 984 N.E.2d at 1218 (noting 

that we construe all factual inferences in favor of the nonmoving party). 

Therefore, the condition could not, under our summary judgment standard, 

have been “known” by Converse. See Restatement § 343A, cmt. b. The 

question then becomes, as in Roumbos, whether the condition was “obvious[.]” 

95 N.E.3d at 67. 

[23] To that point, Elkhart General claims this case is on “all fours” with this court’s 

recent decision in Podemski v. Praxair, Inc., 87 N.E.3d 540 (Ind. Ct. App. 2017), 

trans. denied. Brief of Appellee at 13. There, the court applied Section 343 and 

343(A)(1) where a truck driver slipped and fell on air hose running downward 

from a post into a grate in a darkened area of the facility. Id. at 542. The 

designated evidence established that the truck driver had been at the facility 

roughly every day for “many years[,]” was aware the facility had lacked lighting 

in that area for over five years, and carried a flashlight which he used to “look 

around[.]” Id. at 548. The court therefore concluded the “condition presented 
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by the air hose and the illumination of the area around the hose was known and 

obvious.” Id. 

[24] We view the facts presented here as distinguishable from Podemski. The truck 

driver in Podemski visited the facility almost every day and had “known” of the 

area’s insufficient lighting and the dangers that may entail. Converse, however, 

only visited the building two to three times per week and was unaware of the 

landscaping rocks. See Appellant’s App., Vol. 2 at 138. In that sense, these 

facts are similar to the client in Roumbos who had been to the hospital a 

“number of times” but there was no evidence that the prior rooms she visited 

were identically configured or that there were wires on the floor. 95 N.E.3d at 

68; see Appellant’s App., Vol. 2 at 138 (Converse testified that she did not 

normally walk on the area of the sidewalk where she fell). 

[25] In light of these factual similarities with Roumbos, we ask the same question: 

Does Elkhart General’s designated evidence establish that the rocks on the 

sidewalk and the risks they pose would be apparent to a reasonable person? 

Unlike the errant golf ball in Pfenning, 947 N.E.2d at 406, the foul ball in S. 

Shore Baseball, LLC, 11 N.E.3d at 910, or the air hose concealed by darkness in 

Podemski, 87 N.E.3d at 542, our answer is no. Therefore, whether the 

landscaping rocks generally, or the rocks littering the sidewalk specifically, 

posed a danger that was “known” to Converse, or that such danger should have 

been “obvious” to her, are factual questions which remain for trial. See 

Roumbos, 95 N.E.3d at 67. 
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[26] In sum, Elkhart General remains free to argue these questions to the jury.1 Or, 

should Elkhart General designate sufficient evidence to affirmatively negate an 

element of Converse’s claim in a future motion for summary judgment and 

should Converse fail to designate sufficient evidence to show a question of fact, 

Elkhart General could avoid these questions altogether. However, on the facts 

presented here, we conclude the trial court erred in granting summary judgment 

in favor of Elkhart General and we therefore reverse the trial court’s order and 

remand for further proceedings. 

Conclusion

[27] For the reasons stated above, we reverse the trial court’s order granting 

summary judgment in favor of Elkhart General and remand to the trial court for 

further proceedings consistent with this opinion.

[28] Reversed and remanded.

Riley, J., and Kirsch, J., concur.

 

1 Under the Comparative Fault Act, “[t]he comparative knowledge of a possessor of land and an invitee 

regarding 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.” Smith v. Baxter, 796 N.E.2d 242, 245 (Ind. 2003).