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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.

FILED
Aug 29 2011, 9:53 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: ADAM J. SEDIA Rubino, Ruman, Crosmer, Smith, Sersic & Polen Dyer, Indiana

ATTORNEYS FOR APPELLEES: ROBERT P. STONER ANDREW LUCAS Valparaiso, Indiana

IN THE COURT OF APPEALS OF INDIANA
JEFFREY BROOKS, Appellant-Plaintiff, vs. HENRY and IVA MCNEAL, Appellees-Defendants. ) ) ) ) ) ) ) ) )

No. 45A03-1101-CT-25

APPEAL FROM THE LAKE CIRCUIT COURT The Honorable Lorenzo Arredondo, Judge The Honorable Richard McDevitt, Magistrate Cause No. 45C01-0905-CT-104

August 29, 2011

MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge

Jeffrey Brooks sued Henry and Iva McNeal on the theory of premises liability for personal injuries he allegedly sustained when he fell off a ladder and landed on a glass aquarium sitting on the ground on property owned by the McNeals. Brooks appeals a grant of summary judgment in favor of the McNeals in that action, presenting the following restated issue for review: Did the trial court err in concluding that the McNeals, as landlords of the property, did not owe a duty of care to Brooks, a guest on the property at the invitation of the McNeals' tenant? We affirm. The facts favorable to Brooks, the nonmoving party, are that since 1985, the McNeals had owned the real property in question, located at 2750 King Street in Gary, Indiana (the leased property). They began renting out that property in 1993. At the time of the incident that allegedly resulted in Brooks's injuries, Joe Cudzoil1 had lived in the leased property for four or five years; the McNeals resided across the street. Cudzoil eventually purchased it in 2009 after this incident had occurred. Although the parties never executed a written lease during the period of Cudzoil's tenancy, both parties discussed their respective responsibilities at the outset and agreed that Cudzoil was responsible for yard maintenance for the leased property, while the McNeals would be responsible for major repairs, such as furnace problems.

1

The tenant's name is spelled in different places throughout the appellate materials as either "Cudzoil" or "Cudziol". It appears to us that the sources utilizing the former spelling are more likely to be authoritative on that point. Therefore, we will use that spelling throughout this opinion.

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Brooks, a friend of Cudzoil's, lived two houses away. On May 29, 2007, Brooks was a guest of Cudzoil's at a cookout at the leased property. The McNeals did not attend the cookout, indeed they were not even invited, and they did not know Brooks was there. During the cookout, Brooks, using a chainsaw and a step-ladder, began cutting a branch off a mulberry tree in the backyard. Near the ladder was an empty glass aquarium that had been sitting in the yard for two or three years. The aquarium, sitting on a stand, was actually taller than the small ladder upon which Brooks was standing. At some point, the ladder began to sink into the soft ground upon which it was placed and Brooks lost his balance and fell. He landed on the aquarium and sustained a severe laceration and other injuries. On May 20, 2009, Brooks filed a complaint for damages against the McNeals and Cudzoil, alleging premises liability. On December 11, 2009, the parties stipulated that the action against Cudzoil would be dismissed without prejudice. On April 28, 2010, the McNeals filed a motion for summary judgment. On December 16, 2010, following a

hearing, the trial court granted the motion and entered judgment in favor of the McNeals. Brooks appeals from that ruling. We review a summary judgment order de novo. Neu v. Gibson, 928 N.E.2d 556 (Ind. 2010). Considering only the facts supported by evidence designated to the trial court by the parties, we must determine whether there is a "genuine issue as to any material fact" and whether "the moving party is entitled to a judgment as a matter of law." Ind. Trial Rule 56(C); see also Kovach v. Caligor Midwest, 913 N.E.2d 193 (Ind. 2009). We will accept as true those facts alleged by the nonmoving party. Sees v. Bank One, Indiana, N.A., 839

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N.E.2d 154 (Ind. 2005). Moreover, we construe all factual inferences in favor of the nonmoving party and resolve all doubts as to the existence of a material issue against the moving party. Kovach v. Caligor Midwest, 913 N.E.2d 193. The appellant bears the burden of demonstrating that the grant of summary judgment was erroneous. W.S.K. v. M.H.S.B., 922 N.E.2d 671 (Ind. Ct. App. 2010). As indicated above, the McNeals requested summary judgment on grounds that they had no liability for Brooks's injuries because they had surrendered full possession and control of the leased property to Cudzoil at the time Brooks was injured. Conspicuously absent from their motion, the brief supporting their motion, and the order granting summary judgment in their favor is any mention of the word "duty." Yet, there can be no doubt that the ruling in their favor was premised upon the trial court's determination that the McNeals owed no duty to Brooks at the time of his injury. Upon appeal, the parties squarely address the question of duty

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