Summary Judgment for Cemetery in Indiana Premise Liability Case Affirmed by the Indiana Court of Appeals

The Indiana Court of Appeals recently affirmed a trial court’s grant of summary judgment in favor of a cemetery in an Indiana premise liability case. In Lowrey v. SCI Funeral Servs., Inc., Donald Lowrey and Barbara Lowrey were visiting their daughter’s interment site at the Elm Ridge Funeral Home & Memorial Park in Muncie, Indiana. As the Lowreys were walking on a sidewalk around a mausoleum in an attempt to return to the cemetery’s parking lot, Donald attempted to step across the grassy corner of two perpendicular sidewalks stepping from one sidewalk to the other sidewalk. However, when Donald stepped his foot did not make it completely onto the intersecting sidewalk, and as a result, his ankle rolled and he fell to the ground, striking his wife Barbara, who also fell. Donald and Barbara were both injured as a result of their falls and they sued the cemetery.

In their personal injury lawsuit, the Lowreys alleged the cemetery was negligent in maintaining its sidewalks due to ground/soil erosion at the corner of the two intersecting sidewalks. In support of their claims, the Lowreys presented a report from a professional engineer who determined there was a two-to-three-inch drop-off from the sidewalk to the ground at the corner of the sidewalks, the erosion of the ground at the corner of the sidewalks was due to the direction of drainage, and the cemetery’s failure to keep the ground flush with the sidewalks caused Donald’s fall. The cemetery filed a motion for summary judgment arguing it was not negligent as a matter of law. After holding a hearing, the trial court granted the cemetery’s motion, and the Lowreys appealed.

Indiana has adopted Section 343 of the Restatement (Second) of Torts in premise liability cases, which provides that a property owner is liable for injuries to persons invited onto their property caused by a condition on their property if the owner (1) knew of, or should have discovered, the condition and that it involved an unreasonable danger, (2) should have expected persons invited onto the property would not realize the danger or protect themselves against it, and (3) the property owner failed to exercise reasonable care to protect such persons against the danger. However, under Section 343A of the Restatement, if a danger is known or obvious to an invitee, a property owner will not be liable unless the property owner should have anticipated the harm despite such knowledge or obviousness. Importantly, property owners are not insurers of their invitees’ safety, and the fact that a fall occurred is not sufficient in and of itself to prove negligence.

Here, the Indiana Court of Appeals found the two-to-three-inch drop-off between the sidewalk and the ground was open and obvious and the cemetery was not liable as a matter of law for the Lowreys injuries. The Court noted there was nothing wrong with the sidewalks, which the Lowreys had used previously in visiting the cemetery seven or eight times. There had never been any complaints or claims of injury related to the sidewalks or the adjacent landscaping. And both Donald and Barbara had noticed the condition of the corner between the sidewalks. As Donald had stated in his deposition, the falls occurred when Donald “took a shortcut” stepping half on the sidewalk and half off the sidewalk, which had a drop-off that was “in plain sight.”

You can read the full opinion here.