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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.

ATTORNEY FOR APPELLANT:
ROBERT O. BEYMER

ATTORNEYS FOR APPELLEE:
KYLE C. PERSINGER

Muncie, Indiana

Spitzer Herriman Stephenson Holderead Musser & Conner, LLP Marion, Indiana

IN THE COURT OF APPEALS OF INDIANA
LINDA HARTER, Appellant-Plaintiff, vs. LARRY COUCH and ROSE COUCH, Appellee-Defendants. ) ) ) ) ) ) ) ) )

No. 27A04-0701-CV-21

APPEAL FROM THE GRANT SUPERIOR COURT The Honorable Randall L. Johnson, Judge Cause No. 27D02-0701-PL-14

August 31, 2007 MEMORANDUM DECISION - NOT FOR PUBLICATION FRIEDLANDER, Judge

Linda Harter appeals a grant of summary judgment in favor of her landlords, Larry and Rose Couch, in Harter's negligence lawsuit against the Couches. Harter challenges the trial court's ruling as the sole issue on appeal. We affirm. The facts favorable to the non-movant, Harter, are that on April 26, 1998, Harter and the Couches entered into a lease whereby Harter rented one-half of a duplex owned by the Couches in Gas City, Indiana. Entry into Harter's apartment was gained via a porch that exclusively served her residence. Harter was responsible for mowing the lawn and for snow removal. At some point prior to the incident that is the subject of this lawsuit, Harter notified the Couches that there were leaks where the eaves trough abutted the roof of the front porch above the front door. According to Harter, Larry Couch acknowledged the problem and told her he would "get to it." Appellant's Brief at 5. It appears the Couches never repaired the problem about which Harter complained. Snow fell on January 30, 2003. Sometime around 9:00 p.m., Harter shoveled and spread salt on her porch. Snow continued to accumulate during the night. Harter arose earlier than usual the next morning because she was concerned about the condition of the roads. At the time, although it was only twenty-two degrees, there was a mist falling and ice was present on her porch. When she stepped onto her porch, Harter "knew the ice was there" and "knew it was slick", therefore she held onto the side of the duplex and "inched" along. Appellant's Appendix at 39. As she prepared to step down off of the porch, Harter slipped, fell, and broke her leg. 2

On January 28, 2005, Harter filed a complaint for damages alleging the Couches were negligent in the following manner: "Defendants were negligent as Landlords because they failed to properly maintain the eaves troughs on the leased premises, which resulted in an accumulation of ice on the front porch and which caused Plaintiff's fall." Id. at 1. The Couches answered in denial and asserted several affirmative defenses, including a third-party defense, set-off, and incurred risk. On August 4, 2006, the Couches filed a motion for summary judgment, arguing they did "not have a duty to protect Harter from injuries due to alleged defective conditions on the property once possession and control of the property have been surrendered." Id. at 9. The trial court granted the Couches' motion on November 3, 2007. In order to prevail on a motion for summary judgment in a negligence case, the defendant must establish that the undisputed material facts negate at least one element of the plaintiff's claim. Olds v. Noel, 857 N.E.2d 1041 (Ind. Ct. App. 2006). A defendant's duty to the plaintiff to exercise reasonable care is a required element in the tort of negligence. Id. "`Summary judgment in a negligence case is particularly appropriate when the court determines that no duty exists because, absent a duty, there can be no breach and, therefore, no negligence.'" Id. at 1043. (quoting Reed v. Beachy Const. Corp., 781 N.E.2d 1145, 1148-49 (Ind. Ct. App. 2002), trans. denied). When reviewing a motion for summary judgment, we apply the same standard as the trial court. Perry v. Driehorst, 808 N.E.2d 765 (Ind. Ct. App. 2004), trans. denied. Summary judgment is appropriate only if no genuine issues of material fact exist, and the 3

moving party is entitled to judgment as a matter of law. Id. Like the trial court, we may not look beyond the evidence specifically designated to the trial court. Id. After the movant has established that no genuine issue of material fact exists by submitting the materials contemplated by Trial Rule 56, the nonmovant must set forth specific facts, using supporting materials as contemplated under the T.R. 56, which show the existence of a genuine issue for trial. Id. "A trial court's grant of summary judgment is clothed with the presumption of validity, and the appellant bears the burden of demonstrating that the trial court erred." Id. at 768. In Indiana, as a general rule, the question whether a duty is owed with respect to the maintenance and condition of real property depends primarily upon whether the defendant was in control of the premises when the accident occurred. Olds v. Noel, 857 N.E.2d 1041. We have summarized the rule specifically applicable in the landlord-tenant setting as follows: "`As a general rule, in the absence of statute, covenant, fraud or concealment, a landlord who gives a tenant full control and possession of the leased property will not be liable for personal injuries sustained by the tenant or other persons lawfully upon the leased property.'" Id. at 1044 (quoting Pitcock v. Worldwide

Recycling, Inc., 582 N.E.2d 412, 414 (Ind. Ct. App. 1991)). The Couches claimed successfully to the trial court that they had surrendered complete control and possession of the leased premises to Harter and therefore had no duty to her with respect to the condition of the premises. Harter's response in opposition to summary judgment was three-fold. First, she contended she did not have exclusive 4

control of the premises because the Couches occasionally assumed responsibility to make structural repairs to the premises. Therefore, she contends the general rule of nonliability does not apply. Second, she contends the ice had accumulated as the result of a defective condition in the premises

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