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: ATTORNEYS FOR APPELLEE:

ERIC A. FREY THOMAS L. DAVIS

Frey Law Firm JULIE BLACKWELL GELINAS

Terre Haute, Indiana MAGGIE L. SMITH

Frost Brown Todd LLC

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

DONALD H. WESTFALL, )

)

Appellant, )

)

vs. ) No. 77A01-1012-CT-665

)

WAL-MART STORES EAST, LP, )

)

Appellee. )

APPEAL FROM THE SULLIVAN SUPERIOR COURT

The Honorable Robert E. Springer, Judge

Cause No. 77D01-0710-CT-323

August 12, 2011

MEMORANDUM DECISION - NOT FOR PUBLICATION

DARDEN, Judge

2

STATEMENT OF THE CASE

Donald H. Westfall appeals the trial court’s order granting summary judgment to

Wal-Mart Stores East, LP (“Wal-Mart”).

We reverse and remand for further proceedings.

ISSUE

Whether the trial court erred by granting summary judgment to Wal-Mart.

FACTS

The facts most favorable to Westfall, the non-movant in this summary judgment

proceeding, are as follows. On March 5, 2007, around 5:00 p.m., Westfall, who had not

been feeling well, went to the hospital emergency room for an EKG. Around 9:00 p.m.,

Westfall left the emergency room with a prescription to treat a heart arrhythmia. When

Westfall arrived at the hospital, it was not raining or snowing, but when he left the

hospital, the weather was “blustery[,]” and it was “either raining and hailing a little or

raining and snowing.” (Westfall’s App. 58). Westfall’s son, Jonathan Aguilar, drove

Westfall from the hospital to Wal-Mart to pick up his prescription.

Upon arriving at Wal-Mart, Aguilar parked in a parking spot nearest to the door,

went into Wal-Mart to retrieve an electronic cart for Westfall, and drove it out to the car.

Westfall walked with a cane, but he used a Wal-Mart’s electronic shopping cart whenever

he shopped at Wal-Mart, which was “probably daily.” (Westfall’s App. 60). Westfall

also wore a belt around his chest and abdomen so people could assist him when getting

up or making movements. Aguilar used this assist belt to help Westfall, who was sitting

in the passenger seat, transfer from the car to the cart.

3

Westfall and Aguilar saw that the parking lot had previously been plowed and that

there were piles of snow near the poles in the parking lot. The snow piles contained some

loose pieces of asphalt or gravel that had apparently been scooped up into the snow when

the parking lot had been plowed. Near where Aguilar had parked his car, some of the

snow from such a snow pile had melted, causing some loose asphalt debris to flow down

from the pile and onto the parking lot and leaving a sort of “glacial trail” where “[t]he

water had drained away but the material was still there.” (Westfall’s App. 61). The

asphalt debris “was tapered like the mouth or the delta of a river . . . . It was . . . narrower

up near the snow, but fan [sic] out towards the bottom part.” (Westfall’s App. 64).

Westfall saw this patch of loose asphalt debris, which measured approximately twelve to

eighteen inches wide, as he got out of the car and onto his cart. Despite the debris,

Westfall was able to transfer from the car to the cart, and he later indicated in a

deposition that when exiting the car the loose asphalt “wasn’t a problem.” (Westfall’s

App. 61). Aguilar also saw the asphalt debris prior to entering the store and also testified

in his deposition that it was not a problem for Westfall when exiting the car and getting

onto the cart.

Westfall shopped in Wal-Mart for approximately twenty minutes and then drove

the electric cart out to the parking lot next to the passenger side of Aguilar’s car. When

he came out of the store, precipitation was still falling.1 Aguilar opened the car door and

used Westfall’s assist belt to help him transfer from the cart to the car. Westfall held onto

1 In his deposition, Westfall responded in the affirmative when asked if it was “still raining or snowing”

upon leaving the Wal-Mart store, but he did not specify which type of precipitation was falling.

(Westfall’s App. 62).

4

the top of the passenger door and put his left foot into the car. As he put his right foot on

the ground, he slipped on the loose asphalt debris. Westfall did not fall to the ground or

hit any part of his body on the ground. Aguilar held Westfall up with his assist belt and

helped him regain his footing and get into the car. Aguilar returned the electric cart to the

Wal-Mart store.2 Aguilar did not report to any Wal-Mart employee that Westfall had

slipped in the parking lot. Aguilar then took Westfall home.

The following day, March 6, 2007, Westfall realized he was hurt when he

attempted to get out of bed. He had “extreme pain” in his abdomen extending down his

chest and into his crotch. (Westfall’s App. 87). Westfall was hospitalized from that day

until July 2007. He had internal bleeding from a tear in his intestines and had two

surgeries.

On October 11, 2007, Westfall filed a complaint against Wal-Mart, alleging that

Wal-Mart was negligent for “failing to keep their parking lot cleared from snow/ice.”

(Westfall’s App. 54). In November 2007, upon motion by Wal-Mart, the case was

moved to United States District Court and then later remanded back to the trial court in

June 2008. Westfall then filed an amended complaint, adding Custom Sweeping Services

(“Custom Sweeping”) and Triple A Lawn & Landscape (“Triple A”)—who provided

sweeping and plowing services to Wal-Mart—as defendants.

2 When Westfall shopped by himself, he would have one of the cart boys return the electric cart to the

store for him.

5

Wal-Mart, Custom Sweeping, and Triple A all filed individual motions for

summary judgment.3 Wal-Mart’s designated evidence consisted only of Westfall’s

complaint and portions of Westfall’s and Aguilar’s depositions. Wal-Mart—relying on

Westfall’s and Aguilar’s deposition testimony that they were aware of the loose asphalt

in the parking lot and that they acknowledged it was not a problem upon exiting the car—

argued that it was entitled to summary judgment because it had not breached its duty to

Westfall as an invitee. Specifically, Wal-Mart argued that there was no evidence that

Wal-Mart had actual or constructive knowledge of the condition of the loose asphalt in

the parking lot; the loose asphalt was not an unreasonably dangerous condition; and even

if it was, Westfall failed to take reasonable care to protect himself against it despite his

knowledge of the condition.

Westfall sought three extensions of time to file his response to Wal-Mart’s

summary judgment motion, and the trial court granted each request.4 Westfall filed a

combined response to the three summary judgment motions on November 15, 2010. In

response to Wal-Mart’s summary judgment motion, Westfall admitted that he had seen

the loose asphalt in the parking lot but argued that the question of whether Wal-Mart had

exercised the requisite degree of care was a question of fact for the jury.

On December 3, 2010, the trial court held a hearing on the summary judgment

motions. At the beginning of the hearing—and after stipulation by Westfall—the trial

3 Wal-Mart filed its summary judgment motion on July 16, 2010, Custom Sweeping filed its motion on

September 22, 2010, and Triple A filed its motion on October 27, 2010.

4 These extensions of time will be discussed in further detail later in the opinion.

6

court granted Custom Sweeping’s and Triple A’s summary judgment motions. The trial

court took Wal-Mart’s motion under advisement and thereafter issued an order granting

Wal-Mart’s motion for summary judgment and generally concluding that “there [was] no

material dispute of fact” and that Wal-Mart was “entitled to judgment as a matter of law.”

(Westfall’s App. 38).

DECISION

Before we proceed to the issue of whether summary judgment was appropriately

granted, we address Wal-Mart’s assertion that Westfall’s response and designated

evidence were untimely filed and cannot be considered by this court. Wal-Mart contends

that because Westfall’s third extension of time was filed more than thirty days after the

date contained in the trial court’s second order granting an extension of time, the trial

court was without discretion to grant the third extension and this court should not

consider Westfall’s designated evidence.

Indiana Trial Rule 56(C) provides that a party opposing a motion for summary

judgment has thirty days after service of the motion to serve a response and any opposing

affidavits. Indiana Trial Rule 56(I) provides: “For cause found, the Court may alter any

time limit set forth in this rule upon motion made within the applicable time limit.” Ind.

T.R. 56(I) (emphasis added). Our Indiana Supreme Court has explained that there is a

“bright line rule” that prohibits a trial court from considering summary judgment filings

after the thirty-day period:

[W]here a nonmoving party fails to respond within thirty days by either (1)

filing affidavits showing issues of material fact, (2) filing his own affidavit

under Rule 56(F) indicating why the facts necessary to justify his

7

opposition are unavailable, or (3) requesting an extension of time in which

to file his response under 56(I), the trial court lacks discretion to permit that

party to thereafter file a response. In other words, a trial court may

exercise discretion and alter time limits under 56(I) only if the nonmoving

party has responded or sought an extension within thirty days from the date

the moving party filed for summary judgment.

HomEq Servicing Corp. v. Baker, 883 N.E.2d 95, 98 (Ind. 2008) (quoting Desai v. Croy,

805 N.E.2d 844, 849 (Ind. Ct. App. 2004), trans. denied) (emphasis added).

Here, Westfall filed three extensions of time to respond to Wal-Mart’s summary

judgment motion. The trial court’s order granting Westfall’s second extension provided

that Westfall had “to and including October 16, 2010 in which to file his response to

defendant, Wal-Mart’s Motion for Summary Judgment.” (Wal-Mart’s App. 6).

Thereafter, on October 1, 2010, the trial court issued an order indicating that a summary

judgment hearing on the three defendants’ summary judgment motions and a status

conference requested by Wal-Mart would both be held on November 15, 2010. On

October 22, 2010—six days after the due date of Westfall’s response to Wal-Mart’s

summary judgment motion—Westfall filed a third extension of time to respond to Wal-

Mart’s summary judgment motion. In his extension motion, Westfall erroneously

indicated that the trial court had already granted him an extension of time until November

15, 2010 to respond to Wal-Mart’s summary judgment motion, and he asked that he be

allowed to file a combined summary judgment response to Wal-Mart’s and Custom

Sweeping’s summary judgment motions. The trial court granted Westfall’s extension,

and Westfall filed a combined response to the summary judgment motions on November

15, 2010. Westfall’s designated evidence apparently consisted of evidence that was

8

already designated by the three defendants, such as portions of his and Aguilar’s

depositions and Triple A’s affidavit regarding its contract for snow plowing with Wal-

Mart.5

Wal-Mart, however, did not file a motion to strike or object to any portion of

Westfall’s designated evidence during the summary judgment hearing.6 Instead, Wal-

Mart raises this issue for the first time in its Appellee Brief and simply asserts Westfall’s

designated evidence should not have been considered by the trial court or this court. “A

5 Triple A’s affidavit provided, in relevant part:

5. Triple A contracts with the Terre Haute Wal-Mart retail center (“Wal-Mart”) to

perform landscaping and snow removal services there.

6. The snow removal contract provides that Triple A must clear Wal-Mart’s parking lot

once at least one (1) inch of snow has fallen.

7. Triple A will remove snow and ice in Wal-Mart’s parking lot when as little as one

quarter (¼) inch has fallen if Wal-Mart’s manager calls and requests Triple A to do so.

8. Additionally, if inclement weather is predicted, Wal-Mart will call Triple A to spread

calcium chloride on the lot before snow or ice begins falling.

* * * * *

11. On February 17, 2007, Triple A cleared snow from Wal-Mart’s parking lot and

sidewalk.

12. In between February 17, 2007 and March 5, 2007, Triple A did not perform any

snow removal work at Wal-Mart.

13. In between February 17, 2007 and March 5, 2007, no one from Wal-Mart called

Triple A to request snow plowing.

14. Additionally on March 5, 2007 there was not a sufficient snow fall to require Triple

A to make an unrequested trip to plow the Wal-Mart parking lot in Terre Haute, Indiana,

pursuant to the terms of its contract with Wal-Mart.

(Westfall’s App. 89-90).

6 Wal-Mart makes no argument that it objected at the trial court level, and it fails to direct our attention to

a citation in the record indicating that it filed a motion to strike or objected to the designated evidence

during the summary judgment hearing.

9

complaining party has a duty to direct the trial court’s attention to a defective affidavit,

and failure to raise an objection constitutes waiver.” Paramo v. Edwards, 563 N.E.2d

595, 600 (Ind. 1990). Because Wal-Mart failed to file a motion to strike or object to the

designated evidence at the trial court level, it has waived any such argument on appeal.7

Turning to the main issue on appeal, Westfall argues that the trial court erred by

granting Wal-Mart’s motion for summary in his negligence action against Wal-Mart.

The standard of review of a summary judgment is the same as that used in the trial court.

Kopczynski v. Barger, 887 N.E.2d 928, 930 (Ind. 2008). Summary judgment is

appropriate only where there is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law. Id. “[T]he party seeking summary judgment has

the initial burden of proving the absence of a genuine issue of material fact as to an

outcome-determinative issue. Only then must the non-movant come forward with

contrary evidence demonstrating the existence of genuine factual issues that should be

resolved at trial.” Kroger Co. v. Plonski, 930 N.E.2d 1, 9 (Ind. 2010) (citing Jarboe v.

7 The only reference in the record mentioning Westfall’s designated evidence is during the summary

judgment hearing when counsel for Wal-Mart told the trial court it was not necessary to address the

timing of Westfall’s summary judgment response:

I don’t think we need to address timing [sic] of plaintiff’s response. I don’t think we

need to address the substance of the response in terms of whether it can be considered

because what the plaintiff has done is designated basically, with a few exceptions, the

pages designated by each of the three defendants, who filed their own motions for

summary judgment. And so what we have here is a case on the undisputed facts

presented by plaintiff . . . .

(Tr. 9). “A party may not take advantage of an error that he commits, invites, or which is the natural

consequence of his own neglect or misconduct.” Countrymark Coop., Inc. v. Hammes, 892 N.E.2d 683,

695 (Ind. Ct. App. 2008), trans. denied. “Invited error is not subject to review by this court.” Id. Thus,

to the extent that Wal-Mart may have lodged some sort of objection about the timing of Westfall’s

designated evidence, it cannot now suggest that the trial court erred in considering the designated

evidence when it created the situation and invited any such error.

10

Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind. 1994), reh’g

denied).

In determining whether summary judgment is appropriate, we construe all facts

and reasonable inferences in favor of the nonmoving party. Id. Our review is limited to

those materials designated to the trial court. Mangold ex rel. Mangold v. Ind. Dep’t of

Natural Res., 756 N.E.2d 970, 973 (Ind. 2001). We must carefully review a decision on

summary judgment to ensure a party is not improperly denied its day in court. Id. at 974.

Westfall brought suit against Wal-Mart under a theory of premise liability, which

is rooted in negligence. To prevail on a negligence claim, a plaintiff must establish three

elements: (1) duty owed to the plaintiff by defendant; (2) breach of duty by allowing

conduct to fall below the applicable standard of care; and (3) compensable injury

proximately caused by defendant’s breach of duty. Kroger, 930 N.E.2d at 6. Summary

judgment is “rarely appropriate” in negligence cases. Rhodes v. Wright, 805 N.E.2d 382,

387 (Ind. 2004) (citations omitted). “This is because negligence cases are particularly fact

sensitive and are governed by a standard of the objective reasonable person—one best

applied by a jury after hearing all of the evidence.” Id. A defendant is entitled to

judgment as a matter of law only when the undisputed material facts negate at least one

element of the plaintiff’s claim. Id. at 385.

Wal-Mart does not dispute that Westfall was an invitee while in the Wal-Mart

parking lot. Accordingly, Wal-Mart owed Westfall a duty to exercise reasonable care for

Westfall’s protection while he was on Wal-Mart’s premises. Burrell v. Meads, 569

N.E.2d 637, 639 (Ind. 1991), reh’g denied; Harradon v. Schlamadinger, 913 N.E.2d 297,

11

300 (Ind. Ct. App. 2009), trans. denied. The issue disputed by the parties is whether

Wal-Mart breached its duty to Westfall as a matter of law.8 A determination of whether

there has been a breach of duty in a negligence action generally is a question of fact for a

jury and, therefore, inappropriate for resolution by summary judgment. Northern Indiana

Pub. Serv. Co. v. Sharp, 790 N.E.2d 462, 466 (Ind. 2003). The court may, however,

determine as a matter of law whether a breach of duty has occurred when the facts are

undisputed and lead only to a single inference or conclusion. Id.

Our Indiana Supreme Court has adopted Restatement (Second) of Torts Section

343, which defines the scope of the duty a landowner owes to an invitee on its property

and provides:

A possessor of land is subject to liability for physical harm caused to his

invitees by a condition on the land, 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)). All

three conditions set forth in Section 343 must be met for liability to attach. Harradon,

913 N.E.2d at 300. Therefore, in order for Wal-Mart to obtain summary judgment in its

favor, it was required to designate evidence demonstrating that one of these elements of

8 In the summary judgment proceeding and on appeal, Wal-Mart has not disputed that Westfall fell on the

loose gravel debris and injured himself.

12

premises liability is not satisfied. See Pfenning v. Lineman, 947 N.E.2d 392, 406 (Ind.

2011); Jarboe, 644 N.E.2d at 123.

Additionally, Section 343A of the Restatement (Second) of Torts—which

discusses known or obvious dangers and is meant to be read along with Section 343—

provides, in part, as follows: “A possessor of land is not liable to his invitees for physical

harm caused to them by any . . . condition on the land whose danger is known or obvious

to them, unless the possessor should anticipate the harm despite such knowledge or

obviousness.”9 Smith v. Baxter, 796 N.E.2d 242, 245 (Ind. 2003) (quoting Restatement

(Second) of Torts § 343A); see also Douglass v. Irvin, 549 N.E.2d 368, 370 (Ind. 1990).

“The 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.”10

Smith, 796 N.E.2d at 245.

9 As explained in the comments to Section 343A:

The word “known” denotes knowledge of the existence of the condition or activity itself

and also appreciation of the danger it involves. Thus the condition or activity must not

only be known to exist, but it must also be recognized that it is dangerous, and the

probability and gravity of the threatened harm must be appreciated. “Obvious” means

that both the condition and the risk are apparent to and would be recognized by a

reasonable man, in the position of the visitor, exercising ordinary perception, intelligence,

and judgment.

Restatement (Second) of Torts § 343A, cmt. b.

10

We acknowledge that our supreme court recently indicated that a plaintiff’s subjective knowledge of a

risk of harm should not be addressed when analyzing the factors contained in Restatement (Second) of

Torts Section 343 and stated that the plaintiff’s knowledge is only relevant when assessing the defense of

incurred risk. See Pfenning, 947 N.E.2d at 406. That case, however, did not address Restatement Section

343A. Furthermore, in Smith, 796 N.E.2d at 244, our supreme court reaffirmed that the analysis in

Douglass, 549 N.E.2d at 370—that parties’ knowledge of a risk is appropriate for determination of both

13

Wal-Mart—focusing on Westfall’s subjective awareness of the loose gravel

debris and the fact that he was able to traverse it upon exiting the car—argues that

summary judgment was appropriate because its designated evidence reveals that Westfall

would not be able to show that Wal-Mart breached its duty of care to sustain its claim of

premises liability.

Westfall contends that there are disputed issues of fact regarding whether Wal-

Mart breached its duty to maintain a safe parking lot and argues that his deposition

testimony—that he saw the loose gravel when exiting the car “but it wasn’t a problem”—

when construed most favorably to him as a non-movant does not establish a basis for

granting summary judgment. (Westfall’s App. 61). We are compelled to agree with

Westfall because Wal-Mart has not met its initial burden of demonstrating the absence of

a genuine issue of material fact in regard to the breach of duty issue.

In Jarboe, our Indiana Supreme Court explained the importance of the parties’

burden in a summary judgment proceeding:

The burden imposed at trial upon the party with the burden of proof on an

issue is significantly different from that required of a non-movant in an

Indiana summary judgment proceeding. Under Indiana’s standard, the

party seeking summary judgment must demonstrate the absence of any

genuine issue of fact as to a determinative issue, and only then is the non-

movant required to come forward with contrary evidence.

* * * * *

Merely alleging that the plaintiff has failed to produce evidence on each

element of [his cause of action against the defendant] is insufficient to

entitle the defendant to summary judgment under Indiana law.

breach of duty and defense of incurred risk—was applicable even after the passage of the Comparative

Fault Act.

14

Jarboe, 644 N.E.2d at 123.

More recently, in Kroger Co. v. Plonski, our supreme court reemphasized the

burden requirements set out in Jarboe and the necessity that a moving party meet its

initial burden of proving an absence of a genuine issue of material fact. In that case, the

defendant-store Kroger argued on summary judgment that it had not breached its duty to

a business invitee who had been attacked in the parking lot because the designated

evidence showed that the customer had shopped at the Kroger store approximately 100

times without incident and admitted feeling safe and because there was no evidence that

the store had done anything differently on the day of the attack. Kroger, 930 N.E.2d at 9.

Our supreme court explained that the fact that the customer had felt safe at the Kroger in

the past was “not dispositive” and that the lack of evidence regarding Kroger’s actions on

the day of the attack was “the point of the matter” and that it would be left to the fact

finder to determine whether Kroger should have done more. Id. at 110.

Accordingly, our task on appeal is not to determine whether Westfall has proved

each element of the breach of duty issue; instead, we must determine whether Wal-Mart

has adequately met its initial burden of proving an absence of any genuine issue of

material fact in its designated evidence with respect to the breach of its duty of care. See

Kroger, 930 N.E.2d at 9; Jarboe, 644 N.E.2d at 123.

Here, as the moving party in this summary judgment action, Wal-Mart had the

burden of showing that as a matter of law it did not breach its duty to Westfall when he

was an invitee on its premises. The only summary judgment evidence Wal-Mart

designated to the trial court was Westfall’s complaint and portions of Westfall’s and

15

Aguilar’s depositions. Wal-Mart’s designated evidence did not include any sort of

affidavit from any Wal-Mart employee or any evidence indicating what it did or did not

do to meet its duty of care. In fact, during the summary judgment hearing, Westfall

argued that Wal-Mart had an obligation to make the premises safe and that summary

judgment was inappropriate because there was “no evidence in the record of what [Wal-

Mart] did to make it safe except hire a company to do some snow removal and put it in a

pile” and that there was “nothing in the record to show they did anything.” (Tr. 15). In

response, Wal-Mart agreed that “we don’t know what Wal-Mart did” and that the

“summary judgment [was] not based on what Wal-Mart did because that would put

things into the record about which there might be inferences.” (Tr. 16).

In essence, Wal-Mart attempts to shine the spotlight of the breach of duty analysis

entirely onto Westfall and his actions and knowledge while Wal-Mart attempts to hide in

the shadows and ignore any facts or evidence regarding whether it should have

discovered the condition or expected Westfall would fail to protect himself. Pursuant to

Jarboe, Wal-Mart has not met its initial burden on its motion for summary judgment.

Wal-Mart has not demonstrated the absence of a genuine issue of material fact, but

instead, has merely alleged that Westfall failed to present evidence showing that Wal-

Mart breached its duty. Such an allegation, however, is insufficient to entitle Wal-Mart

to summary judgment on this issue. See, e.g., Kroger, 930 N.E.2d at 9; Jarboe, 644

N.E.2d at 123; Dennis v. Greyhound Lines, Inc., 831 N.E.2d 171, 175 (Ind. Ct. App.

2005) (reversing trial court’s grant of summary judgment to defendants because its

designated evidence did not establish the absence of a genuine issue of material fact

16

relating to breach of duty), trans. denied; Deuitch v. Fleming, 746 N.E.2d 993, 998-99

(Ind. Ct. App. 2001) (reversing trial court’s grant of summary judgment to defendants

who had argued that summary judgment was appropriate on plaintiffs’ premises liability

claim because plaintiffs were not able to establish facts to support that there was a breach

of duty by defendants or that injuries were proximately caused by such a breach), trans.

denied; Cole v. Gohmann, 727 N.E.2d 1111, 1116 (Ind. Ct. App. 2000) (reversing trial

court’s grant of summary judgment to defendant because she failed to designate materials

establishing the absence of a material fact regarding whether she breached a duty of

care). Accordingly, we reverse the trial court’s order granting summary judgment to

Wal-Mart and remand for further proceedings.11

We reverse and remand for further proceedings.

RILEY, J., and BARNES, J., concur.

11

Furthermore, whether a breach of duty occurred is a factual question requiring an evaluation of the

landowner’s conduct with respect to the applicable standard of care. Countrymark, 892 N.E.2d at 688.

The lack of designated evidence regarding Wal-Mart’s conduct and knowledge leaves an issue of fact

regarding whether it breached its duty of care that must be determined by the trier of fact. See e.g., id. at

691 (affirming trial court’s denial of summary judgment where genuine issues of fact regarding breach of

duty as set forth in Restatement Sections 343 and 343A remained).