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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
Feb 23 2011, 9:26 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLANT: DANIEL H. PFEIFER DOUGLAS E. SAKAGUCHI South Bend, Indiana

ATTORNEYS FOR APPELLEE: THOMAS TODD REYNOLDS JOSHUA J. RAUCH Carmel, Indiana

IN THE COURT OF APPEALS OF INDIANA
WILLIAM SMITH, Appellant-Plaintiff, vs. ARBOR WOODS APARTMENTS, Appellee-Defendant. ) ) ) ) ) ) ) ) )

No. 25A03-1005-CT-262

APPEAL FROM THE FULTON CIRCUIT COURT The Honorable A. Christopher Lee, Judge Cause No. 25C01-0810-CT-433

FEBRUARY 23, 2011 MEMORANDUM DECISION - NOT FOR PUBLICATION

SHARPNACK, Senior Judge

Plaintiff-Appellant William Smith appeals the trial court's grant of summary judgment to Defendant-Appellee Arbor Woods Apartments ("Arbor Woods"). reverse and remand. I. ISSUE Smith raises one issue, which we restate as whether the trial court erred by granting summary judgment to Arbor Woods. II. FACTS AND PROCEDURAL HISTORY Smith was a tenant at the Arbor Woods apartment complex. On December 1, 2007, at 6:30 p.m., Smith left his apartment to take his dog for a walk. Rain, sleet, and freezing rain had fallen during the day. Smith waited until the precipitation was over before he went outside. He saw that the sidewalks, streets, and trees were covered with ice. Smith walked down a sidewalk with his dog, and as he turned around to return to his apartment, he slipped on ice and fell, sustaining injury. Smith sued Arbor Woods, which filed a motion for summary judgment. After a hearing, the trial court granted Arbor Woods' motion and entered judgment in favor of Arbor Woods. Smith now appeals. III. DISCUSSION We review an appeal from the grant of summary judgment de novo. Eads v. Cmty. Hosp., 932 N.E.2d 1239, 1243 (Ind. 2010). Summary judgment is proper when there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Indiana Trial Rule 56(C). All facts and reasonable inferences drawn from those We

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facts are construed in favor of the nonmoving party. Cox v. Paul, 828 N.E.2d 907, 911 (Ind. 2005). In this case, Smith proceeded under a theory of negligence. To sustain an action for negligence, a plaintiff must establish: (1) a duty owed by the defendant to conform its conduct to a standard of care arising from its relationship with the plaintiff; (2) a breach of that duty; and (3) an injury proximately caused by the breach of that duty. Benton v. City of Oakland City, 721 N.E.2d 224, 232 (Ind. 1999). Summary judgment is "rarely appropriate" in negligence cases. Rhodes v. Wright, 805 N.E.2d 382, 387 (Ind. 2004) (quoting Tibbs v. Huber, Hunt & Nichols, Inc., 668 N.E.2d 248, 249 (Ind. 1996)). 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. Rhodes, 805 N.E.2d at 387. Here, the parties do not dispute that Smith, as a tenant, was an invitee on Arbor Woods' property and that Arbor Woods owed Smith a duty to exercise reasonable care for his protection. Instead, the parties dispute whether Arbor Woods breached its duty to Smith by failing to clear snow and ice from the sidewalks around Smith's building. The determination of a breach of duty, which requires a reasonable relationship between the duty imposed and the act alleged to have constituted the breach, is usually a matter left to the trier of fact. Mangold ex rel. Mangold v. Ind. Dep't of Natural Res., 756 N.E.2d 970, 975 (Ind. 2001). Only where the facts are undisputed and lead to but a single inference or conclusion may the court as a matter of law determine whether a breach of duty has occurred. Id.
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Our Supreme Court has adopted Sections 343 and 343A of the Restatement (Second) of Torts to illustrate the contours of a landowner's duty toward an invitee. See Smith v. Baxter, 796 N.E.2d 242, 243 (Ind. 2003). Those sections provide, in relevant part:

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