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Defendant's Attorney: Peter J. Agostino
Stephanie L. Nemeth
Description:
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.
Court of Appeals of Indiana | Memorandum Decision 21A-CT-2102| January 28, 2022 Page 3 of 12
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.
Court of Appeals of Indiana | Memorandum Decision 21A-CT-2102| January 28, 2022 Page 4 of 12
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
Court of Appeals of Indiana | Memorandum Decision 21A-CT-2102| January 28, 2022 Page 5 of 12
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.
Court of Appeals of Indiana | Memorandum Decision 21A-CT-2102| January 28, 2022 Page 6 of 12
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
Court of Appeals of Indiana | Memorandum Decision 21A-CT-2102| January 28, 2022 Page 7 of 12
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).
Court of Appeals of Indiana | Memorandum Decision 21A-CT-2102| January 28, 2022 Page 8 of 12
[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)).
Court of Appeals of Indiana | Memorandum Decision 21A-CT-2102| January 28, 2022 Page 9 of 12
(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.
Court of Appeals of Indiana | Memorandum Decision 21A-CT-2102| January 28, 2022 Page 10 of 12
[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
Court of Appeals of Indiana | Memorandum Decision 21A-CT-2102| January 28, 2022 Page 11 of 12
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.
Outcome: The trial court did not err in awarding summary judgment to the City. We
affirm.