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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
Mar 20 2009, 9:07 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLANT: MARK S. PANTELLO TIMOTHY LOGAN Benson, Pantello, Morris, James & Logan Fort Wayne, Indiana

ATTORNEYS FOR APPELLEES: DANE L. TUBERGEN P. MICHAEL MILLER Hunt Suedhoff Kalamaros LLP Fort Wayne, Indiana

IN THE COURT OF APPEALS OF INDIANA
TIMOTHY MCFADDEN, Appellant, vs. KURT NESS, STEPHEN A. NESS, STEPHEN NESS and KURT NESS d/b/a DOUBLE SS d/b/a NESS BROTHERS REALTY Appellees. ) ) ) ) ) ) ) ) ) ) )

No. 35A02-0808-CV-690

APPEAL FROM THE HUNTINGTON SUPERIOR COURT The Honorable Jeffrey R. Heffelfinger, Judge Cause No. 35D01-0505-CT-595

March 20, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION FRIEDLANDER, Judge

Timothy McFadden appeals the trial courts grant of summary judgment in favor of Kurt and Stephen Ness individually, and Kurt and Stephen Ness d/b/a Double SS d/b/a Ness Brothers Realty (collectively, Ness Realty unless otherwise indicated) in his negligence claim against Ness Realty. He presents the following restated issue for review: Did the trial court improperly grant summary judgment in favor of Ness Realty? We affirm. The facts favorable to McFadden, the non-moving party, are that McFadden rented a house from Ness Realty. Before executing the lease, McFadden spoke with Ness Realtys property manager, Jim Farlow, about the lease terms. Farlow told McFadden that the tenant was responsible for maintaining the yard and shrubbery, including mowing the lawn. McFadden was aware that there was a steep slope on the property. Farlow affirmed that McFadden was responsible for cutting that hillside. When the two discussed how this could be accomplished, Farlow suggested that McFadden could lower the mower down the slope and pull it up again using an attached rope. McFadden signed the lease on April 28, 2003 and moved into the house shortly thereafter. On May 29, 2003, McFadden mowed the lawn. When it came time to mow the slope, McFadden attempted to push the mower up the slope, but found that he could not keep his footing, so he abandoned the attempt and did not mow the slope. The second time he mowed the yard, he attempted to mow the slope as Farlow had suggested. He removed the mowers handle and tied a cable to it. As he did so, the mower began to roll down the slope, but McFadden stopped it before it rolled to the bottom. He hauled it up and tried a second time

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to attach the cable. Once again, the mower began to roll down the slope. This time, however, McFadden lost his balance as he attempted to stop it, and he tumbled to the foot of the slope, suffering bodily injuries. On May 26, 2005, McFadden filed a complaint for damages alleging the aforementioned appellees were liable for his damages upon the theory of negligence. According to the complaint, the appellees

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