Connie Dominiack, et al. v. City of South Bend

Indianapolis, IN - Personal Injury lawyer represented Appellants-Plaintiff with sued the City of South Bend for a personal injury.

Dominiack works at the St. Joseph County Treasurer's office in South Bend.

Dominiack maintained a nearby parking spot "by the alley” for which she paid

a monthly fee. Appellant's App. Vol. II p. 42. In order to reach the CountyCity Building, where her office was located, Dominiack frequently cut across an

adjacent parking lot that was owned by the City. On July 10, 2017,2

1 Dominiack's husband, Jerry, is also a listed appellant, as the underlying complaint included a claim for loss

of consortium.

2 The complaint alleges that the date of the injuries was July 11, 2017, but Dominiack testified in her

deposition that the correct date was July 10. Appellant's App. Vol. II p. 40.

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Dominiack parked her car next to the church in her usual spot across from the

City-County Building. The adjacent City parking lot was in disrepair, and as

Dominiack walked across it that morning, she tripped, fell, and sustained

injuries, including a broken nose.

[4] Dominiack filed a complaint on July 9, 2019, alleging that the City had

negligently failed to maintain its parking lot, and, as a result, caused

Dominiack's injuries. The City filed a motion for summary judgment on

February 7, 2021. The City sought a ruling as to whether Dominiack was an

invitee or a licensee while in the parking lot. As its designated evidence, the

City provided portions of Dominiack's deposition, as well as a City parking

ordinance. In response, Dominiack designated a duplicative portion of her

deposition as well as an affidavit averring that she had observed other

pedestrians walking across the lot over the years and that there are no

restrictions, fences, or signage prohibiting pedestrian traffic.

[5] The trial court granted summary judgment in favor of the City. In a

comprehensive order, issued May 19, 2021, the trial court held, in relevant part:

4. The Jump[3

] case cites to the Restatement (Second) of Torts

Section 332 (1965) and uses the following definition of a "public

invitee[.]” "A public invitee is a person who is invited to enter or

remain on land as a member of the public for a purpose for which

the land is held open to the public.” [Id.] at 877. A person may

3 Here the trial court refers to our decision in Jump v. Bank of Versailles, 586 N.E.2d 873 (Ind Ct. App. 1992),

upon which Dominiack heavily relies.

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qualify as a public invitee if she is "invited to enter or remain on

land as a member of the public for a purpose for which the land is

held open to the public.” Restatement (Second) of Torts Section

332(2); Jump, [586 N.E.2d at] 877. The Court of Appeals in

Jump stated that an examination of the invitation itself was a

necessary first step in such an analysis. In Jump[,] the evidence

was undisputed that the land in question was used by the general

public for many years as a public walkway. The bank posted no

signs restricting access to the passageway or forbidding

trespassers. In Jump, the Bank's president acknowledged that it

maintained the steps and the passageway to prevent anyone from

falling and to make certain people had a safe way to get through.

In this case, there is evidence in the record that Plaintiff

Dominiack observed that she and "many other pedestrians

walked unimpeded” across the City lot. There is also evidence in

the record that there are no fences, signage, physical barriers, or

anything else limiting access to the City lot. However, unlike the

Jump case, there was no evidence in the record that the City did

anything to maintain or improve the lot in question. In fact, as

counsel for the City indicated at oral argument, the City did next

to nothing to maintain this lot.

* * * * *

Plaintiff Dominiack acknowledges that she takes this route

through the City owned parking lot because it is more convenient

to her.

* * * * *

7. Because the Court FINDS that Plaintiff Dominiack was a

licensee, the City owed her the duty to refrain from willfully or

wantonly injuring her or acting in a manner to increase her peril.

Burrell, [569 N.E.2d] at 639. Because there is no evidence in the

record that the Defendant City engaged in such willful or wanton

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conduct, Defendant City is entitled to summary judgment in this

matter.

Appellant's App. Vol. II pp. 13-16.

[6] Dominiack filed a motion to correct error, which the trial court denied on

August 30, 2021.4

This appeal ensued.

Analysis

[7] Dominiack appeals the trial court's grant of summary judgment in favor of the

City. "'When this Court reviews a grant or denial of a motion for summary

judgment, we stand in the shoes of the trial court.'” Minser v. DeKalb Cnty. Plan

Comm'n, 170 N.E.3d 1093, 1098 (Ind. Ct. App. 2021) (quoting Burton v. Benner,

140 N.E.3d 848, 851 (Ind. 2020)). "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 a judgment as a matter of

law.'” Id. (quoting Murray v. Indianapolis Public Schools, 128 N.E.3d 450, 452

(Ind. 2019)); see also Ind. Trial Rule 56(C).

[8] The summary judgment movant invokes the burden of making a prima facie

showing that there is no issue of material fact and that it is entitled to judgment

as a matter of law. Burton, 140 N.E.3d at 851. The burden shifts to the nonmoving party which must then show the existence of a genuine issue of material

4 Dominiack's briefing addresses only the summary judgment order. She does not address the denial of the

motion to correct error. Accordingly, neither do we.

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fact. Id. On appellate review, we resolve "[a]ny doubt as to any facts or

inferences to be drawn therefrom . . . in favor of the non-moving party.” Id.

[9] We review the trial court's ruling on a motion for summary judgment de novo,

and we take "care to ensure that no party is denied his day in court.” Schoettmer

v. Wright, 992 N.E.2d 702, 706 (Ind. 2013). "We limit our review to the

materials designated at the trial level.” Gunderson v. State, Ind. Dep't of Nat. Res.,

90 N.E.3d 1171, 1175 (Ind. 2018), cert. denied. Because the trial court entered

findings of fact and conclusions of law, we also reiterate that findings of fact

and conclusions of law entered by the trial court aid our review, but they do not

bind us. Matter of Supervised Estate of Kent, 99 N.E.3d 634, 637 (Ind. 2018).

[10] In order to answer the question of whether there are any genuine issues of

material fact, we must recognize that Dominiack's asserted theories of liability

are those of negligence. Thus, in order to prevail, she must demonstrate that

the City owed her a duty. "The nature and extent of a landowner's duty to

persons coming on the property is defined by the visitor's status as an invitee,

licensee, or trespasser.” Yates v. Johnson Cnty. Bd. of Comm'rs, 888 N.E.2d 842,

848 (Ind. Ct. App. 2008) (citing Rhoades v. Heritage Inv., LLC, 839 N.E.2d 788,

791 (Ind. Ct. App. 2005), trans. denied). The parties do not contend that

Dominiack was a trespasser. Rather, they disagree as to whether Dominiack

was a licensee or an invitee.

[11] Dominiack asserts that she was an invitee to the City's parking lot. "An invitee

is a person who is invited to enter or to remain on another's land. There are

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three categories of invitee: the public invitee, the business visitor, and the social

guest.” Id. (citing Rhoades, 839 N.E.2d at 791-92) (internal citations omitted).

"'Under Indiana law, an invitee is a person who goes onto the land of another

at the express or implied invitation of owner or occupant either to transact

business or for the mutual benefit of invitee and owner or occupant.'” Winfrey

v. NLMP, Inc., 963 N.E.2d 609, 612 (Ind. Ct. App. 2012) (quoting Markle v.

Hacienda Mexican Rest., 570 N.E.2d 969, 971 (Ind. Ct. App. 1991)).

[12] Dominiack does not claim that she was a business visitor or a social guest. We,

thus, limit our analysis to whether she enjoyed the status of a public invitee. "A

public invitee is a person who is invited to enter or remain on land as a member

of the public for a purpose for which the land is held open to the public.”

Restatement (Second) of Torts § 332(2).

"[A]n invitation is conduct which justifies others in believing that

the possessor desires them to enter the land.” Restatement

(Second) of Torts § 332 cmt. b. An invitation does not have to

come directly from the landowner . . . . In the absence of actual

authority to invite third parties to the [property], the issue is

whether the landowner's conduct gave the third party reason to

believe that the landowner was willing to allow the third party to

enter the land. See 62 Am.Jur.2d Premises Liability § 112 (2005)

("The word 'consent' or 'permission' indicates that the possessor

of the land is in fact willing that the visitor, or entrant, enter and

remain thereon, or that the possessor's conduct gives the entrant

reason to believe that the possessor is willing to allow him or her

to enter if he or she desires to do so.”[)] (citing Restatement

(Second) of Torts § 330 cmt. c).

Kopczynski v. Barger, 887 N.E.2d 928, 931-32 (Ind. 2008).

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[13] The duty a landowner owes to an invitee is defined by Section 343 of the

Restatement (Second) of Torts, adopted by our Supreme Court in Burrell v.

Meads, 569 N.E.2d 637 (Ind. 1991). See Branscomb v. Wal-Mart Stores E., L.P.,

165 N.E.3d 982, 986 (Ind. 2021). "The highest duty of care is owed to an

invitee; that duty being to exercise reasonable care for the invitee's protection

while he or she is on the premises.” Yates, 888 N.E.2d at 848 (citing Rhoades,

839 N.E.2d at 791).

5

[14] The City argues that Dominiack was, at best, a licensee. A licensee has "a

license to use the land and are privileged to enter or remain on the land by

virtue of the permission or sufferance of the owner or occupier.” McCormick v.

State, Dep't of Nat. Res., 673 N.E.2d 829, 836 (Ind. Ct. App. 1996) (quoting

Burrell, 569 N.E.2d at 640). "Licensees enter the land of another for their own

convenience, curiosity, or entertainment and take the premises as they find

them.” Id. With respect 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) danger on

the premises of which the landowner has knowledge.” Yates, 888 N.E.2d at 848

5 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.

Burrell, 569 N.E.2d at 639-40 (quoting Restatement (Second) of Torts § 343 (1965)).

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(citing Rhoades, 839 N.E.2d at 791). "In determining whether an individual is

an invitee or a licensee, the distinction between the terms 'invitation' and

'permission' is critical.” Id. at 849 (citing Rhoades, 839 N.E.2d at 792).

[15] Dominiack argues that "the question of whether the City's invitation was

sufficiently general and broad to include Connie is a question for the trier of

fact.” Appellant's Br. p. 9. But that argument presupposes that the City

actually issued an invitation of some kind. Dominiack's brief is largely devoted

to a disagreement with the trial court's distinguishing of Jump v. Bank of

Versailles, 586 N.E.2d 873 (Ind. Ct. App. 1992), rather than an argument aimed

at establishing that Dominiack was an invitee.

6

We find Dominiack's briefing

devoid of a cogent argument that the City engaged in "conduct which justifies

others in believing that the possessor desires them to enter the land[,]” and,

accordingly, the argument upon which Dominiack's appeal rests is waived.

Kopczynski, 887 N.E.2d at 931-32; see also Ind. Appellate Rule 46(A)(8); Loomis

v. Ameritech Corp., 764 N.E.2d 658, 668 (Ind. Ct. App. 2002) (holding that the

failure to present a cogent argument waives the issue for appellate review),

trans. denied.

6 This is to say that Dominiack's briefing is incomplete. Even if we were to accept that the trial court

improperly distinguished Jump from the instant matter, that would not yield a conclusion that the City issued

an invitation or that Dominiack was a public invitee. Dominiack treats those conclusions—the core of the

case—as foregone. We, of course, will not. It is true that Dominiack's reply brief focuses on the critical

issues in a way that her opening brief does not. We remind her, however, that it is axiomatic that "an

argument raised for the first time in a reply brief is waived.” Kirchgessner v. Kirchgessner, 103 N.E.3d 676, 682

(Ind. Ct. App. 2018) (quoting U.S. Gypsum, Inc. v. Ind. Gas Co., 735 N.E.2d 790, 797 n.5 (Ind. 2000)), trans.

denied.

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[16] Waiver notwithstanding, we address Dominiack's contention that she was an

invitee, and, by extension, whether the City issued an invitation in any form.

There is no designated evidence in the record to show that the City held open

the parking lot for the public for purposes of pedestrian traffic. Indeed, there is

no designated evidence that seems to originate with the City at all, except the

parking ordinance, which does not speak to the question of whether the City

invited the public to use this particular lot. Dominiack's arguments to the

contrary are unavailing. She maintains that there were no signs or fences

prohibiting her and other pedestrians from traversing the lot and that no City

official ever told her that such traffic was prohibited. A significant difference

between the absence of evidence of a prohibition and evidence that establishes

an actual invitation goes to the heart of the matter. Silence does not equate to

an invitation.

[17] We look to Dominiack's purpose for entering the lot, as well as whether the

City invited the public onto the lot for a particular purpose. Dominiack

concedes that she was not permitted to park in the lot, presumably its primary

purpose. Alternate public routes to the County-City Building from

Dominiack's parking spot existed, and Dominiack knew of the public routes,

including public sidewalks. When asked during her deposition why she chose

to forgo those public routes in favor of traversing the City's private parking lot,

Dominiack replied: "It's closer to go through the parking lot rather than go

around the church.” Appellant's App. Vol. II p. 44. Dominiack then

confirmed that "[i]t's more convenient” for her. Id. at 44-45. We find little

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difficulty concluding, therefore, that Dominiack's purpose for entering the lot

was one of expediency, or, in the words of McCormick, for her "own

convenience.” 673 N.E.2d at 836.

[18] We, therefore, conclude that Dominiack was at best a licensee, and she entered

the parking lot by permission rather than invitation. Our task is not complete,

however, for the City could still be liable to a licensee if the designated evidence

demonstrates that the City acted with willful and wanton conduct. Such

conduct:

. . . consists of two elements: "(1) the defendant must have

knowledge of an impending danger or consciousness of a course

of misconduct calculated to result in probable injury; and (2) the

actor's conduct must have exhibited an indifference to the

consequence of his conduct.” Witham v. Norfolk and Western Ry.

Co., 561 N.E.2d 484, 486 (Ind. 1990). "The distinction between

constructive willfulness and mere negligence depends on the

actor's state of mind.” McKeown v. Calusa, 172 Ind. App. 1, 6-7,

359 N.E.2d 550, 554 (1977).

McGowen v. Montes, 152 N.E.3d 654, 662 (Ind. Ct. App. 2020), trans. denied.

Dominiack has cited no evidence to suggest that the City engaged in such

conduct, and we find none in the record. Accordingly, we find that entry of

summary judgment in favor of the City was appropriate.

The trial court did not err in awarding summary judgment to the City. We

affirm.