text:
    IN RE M.C., a Minor
    (The People of the State of Illinois, Petitioner-Appellee, v. Sean C., Respondent-Appellant).
    NO. 4-18-0144
    Appellate Court of Illinois, Fourth District.
    Filed July 27, 2018
    Monica Hawkins, of Decatur, for appellant.
    Jay Scott, State's Attorney, of Decatur (Patrick Delfino, David J. Robinson, and Thomas R. Dodegge, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE DeARMOND delivered the judgment of the court, with opinion.

¶ 1 In August 2016, the State filed a petition for adjudication of wardship with respect to M.C., the minor child of respondent, Sean C. In December 2016, the trial court made the minor a ward of the court and placed custody and guardianship with the Department of Children and Family Services (DCFS). The State filed a motion to terminate respondent's parental rights in October 2017. Following a hearing on the State's motion in January 2018, the court found respondent unfit. In February 2018, the court determined it was in the minor's best interests that respondent's parental rights be terminated.

¶ 2 On appeal, respondent argues the trial court erred in (1) finding him unfit and (2) terminating his parental rights. We affirm.

¶ 3 I. BACKGROUND

¶ 4 In August 2016, the State filed a petition for adjudication of wardship with respect to M.C., born in October 2015, the minor child of respondent and Sandra F. The petition indicated respondent resided at Graham Correctional Center. The State alleged the minor was neglected pursuant to section 2-3(1)(a) and (b) of the Juvenile Court Act of 1987 (Juvenile Court Act) ( 705 ILCS 405/2-3(1)(a), (b) (West 2016) ) because she was not receiving the proper care as necessary for her well-being because police officers were dispatched to a rollover accident, where the car suffered major damage. Officers found no one in the car but did find two nearly empty bottles of liquor, an item of drug paraphernalia, baby clothing, and a baby bottle. An investigation revealed Sandra F. was driving the vehicle and children were in the car at the time of the crash. Sandra F. denied being in an accident and did not take the children to the hospital because she did not want to be arrested. Her driver's license was invalid, and a child reported Sandra F. had been beaten up by her boyfriend. Based on the reported accident, the State also alleged the minor was abused pursuant to section 2-3(2)(i) and (ii) of the Juvenile Court Act ( 705 ILCS 405/2-3(2)(i), (ii) (West 2016) ) because her parent, immediate family member, or any person responsible for her welfare created a substantial risk of physical injury, by other than accidental means, which would be likely to cause death, disfigurement, impairment of physical or emotional health, or loss or impairment of any bodily function.

¶ 5 The trial court found probable cause for filing the petition based on Sandra F.'s issues with substance abuse, mental health, and domestic violence. The court granted temporary custody to DCFS.

¶ 6 By the time the State filed the verified petition for adjudication, respondent had been identified as the father of M.C. He was, at that time, in the Illinois Department of Corrections and had been since before M.C. was born. After genetic-test results were obtained, a judgment of parentage was entered naming respondent as the father of M.C. in November 2016.

¶ 7 In December 2016, the trial court found M.C. was abused or neglected because she suffers from a lack of support, education, or remedial care due to Sandra F.'s substance-abuse, mental-health, and domestic-violence issues. In its December 2016 dispositional order, the court found respondent was unfit and unable to care for, protect, train, educate, supervise, or discipline the minor and placement with him is contrary to the health, safety, and best interests of the minor because he will be imprisoned until 2024. The court also found Sandra F. similarly unfit and unable to parent M.C. because of her substance-abuse, mental-health, and domestic-violence issues. The court adjudicated the minor neglected, made her a ward of the court, and placed custody and guardianship with DCFS.

¶ 8 In October 2017, the State filed a motion to terminate respondent's parental rights. The State alleged respondent was unfit because (1) he is depraved in that he has been convicted of 13 felonies since 1990 and is currently serving an 18-year prison sentence for armed violence with a projected release date of February 2024 ( 750 ILCS 50/1(D)(i) (West 2016) ); (2) M.C. is in the temporary custody or guardianship of DCFS, and respondent was incarcerated as a result of a criminal conviction at the time the motion to terminate parental rights was filed, prior to incarceration respondent had little or no contact with M.C., and his incarceration will prevent him from discharging his parental responsibilities for M.C. for a period in excess of two years after the filing of the motion to terminate parental rights ( 750 ILCS 50/1(D)(r) (West 2016) ); and (3) M.C. is in the temporary custody or guardianship of DCFS, respondent was incarcerated at the time of the filing of the motion to terminate parental rights, respondent has been repeatedly incarcerated as a result of criminal convictions, and his repeated incarceration has prevented him from discharging his parental responsibilities for M.C. ( 750 ILCS 50/1(D)(s) (West 2016) ). The State likewise proceeded to terminate Sandra F.'s parental rights.

¶ 9 In January 2018, the trial court conducted a hearing on the State's motion, and respondent appeared in the custody of the Illinois Department of Corrections. Lacey Smith, a child-welfare specialist with DCFS, testified she had been the case leader for M.C.'s case since November 2016. The service plan required respondent to address issues involving substance abuse, mental health, and parenting. Smith was unsure whether respondent was offered substance-abuse or mental-health services with the Illinois Department of Corrections, but respondent did complete two parenting classes. Smith had "some communication" with respondent, and he sent letters and pictures he had drawn for M.C. Smith stated respondent had been in prison since March 2016 and had not successfully completed his service plan. Because his projected release date is 2024, Smith stated respondent would be unable to discharge any parental responsibilities until then.

¶ 10 On cross-examination, Smith stated she had never gone to the prison to meet with respondent, and she had not reviewed the service plans with him. Respondent had a visit with M.C. in January 2017.

¶ 11 Vicki Brown, a visitation specialist with Youth Advocate, testified respondent's visits with M.C. began in January 2017 and continued once a month for one hour. The initial visits were "tough" because M.C. was young and she "did a little bit of screaming." Brown stated respondent did try to interact with her. At subsequent visits, M.C. did not cry as much, and respondent read books to her and colored with her. Respondent also sent money to Brown to obtain snacks.

¶ 12 Respondent testified he has been in custody since February 5, 2015. He received an 18-year sentence for the offense of armed violence. Respondent admitted having a substantial criminal history and noted M.C. was born while he was incarcerated. He agreed he had 13 felony convictions, including offenses in 1990, two offenses in 1996, and offenses in 1997, 1998, 1999, 2001, 2002, 2005, 2009, and 2012. He is set to be released from prison in February 2024, but he stated he expected to begin a program that would allow him to work part-time driving a forklift and sewing prison mattresses and potentially earn two years of good-time credit.

¶ 13 On his own volition, respondent stated he contacted DCFS and indicated he would "like to be able to be involved in this whole thing." He denied receiving a service plan and claimed he "didn't know nothing about substance abuse or mental health assessments until today." He participated in parenting classes on his own. He thought he "could probably get some sort of counseling" if he inquired, but prisoners have to be within two years of their release to get substance-abuse treatment. While in prison in the 1990s and 2000s, respondent received certificates in food safety and custodial maintenance, and he was "around a class or two away from an associate's degree in liberal studies."

¶ 14 When visits began, M.C. did not know respondent, but he stated "they're a lot better" now. While the initial visits were "a little rough," M.C. later allowed him to carry her and put on her coat. Respondent stated he received special permission from the warden to take a birthday card so they could color together, and they "made a mess with cake and ice cream." He stated he sends a card or writes to M.C. every two weeks.

¶ 15 Following arguments by counsel, the trial court found respondent unfit on all three grounds alleged by the State. The court found Smith to be "very credible," and it was "obvious" that respondent would not be in the position to parent M.C. while in prison. While the court found respondent "very forthright" and he demonstrated a willingness and desire to be a loving father, it concluded his criminal history prevented him from parenting M.C.

¶ 16 In February 2018, the trial court conducted the best-interests hearing. Lacey Smith testified M.C. and her brother have been living together in a traditional foster home since August 2016. They "are doing very well" and thriving in that foster home. Smith stated M.C.'s foster parents have "been her primary caretakers throughout her life," and they attend church and community activities. M.C. has a "very strong bond with them," and they take care of her daily needs. Smith stated M.C.'s foster parents "have gone above and beyond" for her and provided her with stability throughout the case.

¶ 17 On cross-examination, Smith testified respondent has sent letters on a regular basis since the case was opened. She stated the earliest respondent could be released from prison would be 2022.

¶ 18 In making its best-interests ruling, the trial court stated it considered the statutory factors and found the most applicable were the child's sense of attachment, the least-disruptive placement alternatives, and the need for permanence. The court found M.C. has bonded with her foster parents, has a "very strong attachment" to them, and has thrived in her environment. M.C.'s foster parents meet her emotional, physical, and medical needs, and they "have expressed a strong desire to adopt the children." The court found it in the minor's best interests that respondent's parental rights be terminated. The court also terminated Sandra F.'s parental rights, and she appeals separately in case Nos. 4-18-0237 and 4-18-0238. This appeal followed.

¶ 19 II. ANALYSIS

¶ 20 A. Unfitness Findings

¶ 21 Respondent argues the trial court's findings of unfitness were against the manifest weight of the evidence. We disagree.

¶ 22 In a proceeding to terminate a respondent's parental rights, the State must prove unfitness by clear and convincing evidence. In re Donald A.G. , 221 Ill. 2d 234, 244, 302 Ill.Dec. 735, 850 N.E.2d 172, 177-78 (2006). " 'A determination of parental unfitness involves factual findings and credibility assessments that the trial court is in the best position to make.' " In re Richard H. , 376 Ill. App. 3d 162, 165, 314 Ill.Dec. 911, 875 N.E.2d 1198, 1201 (2007) (quoting In re Tiffany M. , 353 Ill. App. 3d 883, 889-90, 289 Ill.Dec. 317, 819 N.E.2d 813, 819 (2004) ). A reviewing court accords great deference to a trial court's finding of parental unfitness, and such a finding will not be disturbed on appeal unless it is against the manifest weight of the evidence. In re N.T. , 2015 IL App (1st) 142391, ¶ 27, 391 Ill.Dec. 578, 31 N.E.3d 254. " 'A court's decision regarding a parent's fitness is against the manifest weight of the evidence only where the opposite conclusion is clearly apparent.' " In re M.I. , 2016 IL 120232, ¶ 21, 412 Ill.Dec. 901, 77 N.E.3d 69 (quoting In re Gwynne P. , 215 Ill. 2d 340, 354, 294 Ill.Dec. 96, 830 N.E.2d 508, 517 (2005) ).

¶ 23 In this case, the trial court found respondent unfit because (1) he is depraved, (2) his incarceration will prevent him from discharging his parental responsibilities in excess of two years after the filing of the motion to terminate parental rights, and (3) his repeated incarceration has prevented him from discharging his parental responsibilities.

¶ 24 Section 1(D)(s) of the Adoption Act provides as a ground for parental unfitness as follows:

"The child is in the temporary custody or guardianship of [DCFS], the parent is incarcerated at the time the petition or motion for termination of parental rights is filed, the parent has been repeatedly incarcerated as a result of criminal convictions, and the parent's repeated incarceration has prevented the parent from discharging his or her parental responsibilities for the child." 750 ILCS 50/1(D)(s) (West 2016).

¶ 25 In In re D.D. , 196 Ill. 2d 405, 419, 256 Ill.Dec. 870, 752 N.E.2d 1112, 1120 (2001), our supreme court found section 1(D)(s) did not require the repeated incarceration to take place during the child's lifetime. Courts are to " 'consider the overall impact that repeated incarceration may have on the parent's ability to discharge his or her parental responsibilities * * *, such as the diminished capacity to provide financial, physical, and emotional support for the child.' " Gwynne P. , 215 Ill. 2d at 356, 294 Ill.Dec. 96, 830 N.E.2d 508 (quoting D.D. , 196 Ill. 2d at 421, 256 Ill.Dec. 870, 752 N.E.2d 1112 ).

¶ 26 Here, the evidence indicated M.C. was in the temporary custody of DCFS and respondent was incarcerated at the time of the filing of the motion to terminate his parental rights. Moreover, respondent testified he had been repeatedly incarcerated due to his 13 felony convictions. Thus, the remaining issue centers on whether respondent's repeated incarceration has prevented him from discharging his parental responsibilities. Respondent contends he was able to discharge his parental duties because he sent cards and letters to M.C., visited with M.C. and had snacks available during those visitations, had cake and ice cream for her birthday, and enrolled in jobs to gain further skills to support her.

"Being a parent involves more than attending a few visits and sending an occasional gift to the child. The child needs a positive, caring role model present in her life. This ground for unfitness may be utilized regardless of respondent father's efforts, compliance with DCFS tasks and satisfactory attainment of goals, or the amount of interest he has shown in his daughter's welfare." In re M.M.J. , 313 Ill. App. 3d 352, 355, 245 Ill.Dec. 880, 728 N.E.2d 1237, 1240 (2000).

¶ 27 More importantly, respondent's effort to show how he discharged his parental responsibilities by having visits actually works to his disadvantage. It would not be unreasonable to question the parental insight of someone who demands visitation with a child of tender years, a child who does not know him and clearly suffers significant emotional turmoil after being forced to ride for two hours with someone, essentially a stranger, to a correctional facility. By all accounts, to facilitate a one-hour traumatic visit with a stranger in a strange location, M.C. was required to spend four hours in a car once a month. One can envisage far less traumatic ways to discharge one's parental duties. Respondent is serving an 18-year sentence for armed violence, which is only the last in a series of 13 felony convictions since 1990. He has chosen, as he acknowledged during questioning, to spend "a great part of [his] adult life in prison." He should not have forced that experience on a child of tender years who did not even know who he was.

¶ 28 Although respondent had no knowledge of or relationship with M.C. until the beginning of the case, once paternity was established, he requested visits. In spite of the fact she was only 15 months old, and with the understanding respondent would be in no position to provide placement for the child for at least 8 years, visits were authorized at the penitentiary and M.C. was transported from her foster placement in Bloomington, Illinois, to Graham Correctional Center in Hillsboro, Illinois, once a month by a contracted service provider. This necessitated taking a then-15-month-old child on a nearly two-hour car ride for 117 miles to see someone she did not know in a correctional facility. See People v. Deleon , 227 Ill. 2d 322, 326 n.1, 317 Ill.Dec. 843, 882 N.E.2d 999, 1002 n.1(2008) (stating a "court may take judicial notice of the distances between two locations"). By the time of the February 2018 best-interests report and over a year of visits, the caseworker reported the "visits go overall well; however [M.C.] is still a little standoffish to [respondent]. [M.C.] struggles with going to [respondent], despite his continued attempts to make her feel comfortable." The caseworker also reported how respondent had to "rely heavily on the visit worker to assist in calming [M.C.] down and meeting her needs during visits."

¶ 29 We recognize the fundamental liberty interest parental rights engender. Both the United States Supreme Court and Illinois Supreme Court have said so. See Stanley v. Illinois , 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (" 'It is cardinal with us that the custody, care[,]

and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.' " (quoting Prince v. Massachusetts , 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944) ) ); In re D.W. , 214 Ill. 2d 289, 310, 292 Ill.Dec. 937, 827 N.E.2d 466, 481 (2005) ("Indeed, the rights to conceive and raise one's children have been described as among the most ' "basic civil rights of man." ' " (quoting Stanley , 405 U.S. at 651, 92 S.Ct. 1208, quoting Skinner v. Oklahoma ex rel. Williamson , 316 U.S. 535, 541, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942) ) ). However, even in Stanley , the Supreme Court believed the rights of unwed fathers deserved protection only so long as there existed a de facto family and an established relationship.

¶ 30 It is equally self-evident the State has a compelling interest in protecting the lives, welfare, and safety of children when the parent fails since the primary objective of the Juvenile Court Act is to serve and protect the best interests of children. In re A.P. , 2012 IL 113875, ¶ 18, 367 Ill.Dec. 11, 981 N.E.2d 336.

"A child's best interest is not part of an equation. It is not to be balanced against any other interest. In custody cases, a child's best interest is and must remain inviolate and impregnable from all other factors, including the interests of the biological parents." In re Ashley K. , 212 Ill. App. 3d 849, 879, 156 Ill.Dec. 925, 571 N.E.2d 905, 923 (1991).

We then question why, after having been found unfit at the adjudication, by stipulation, and obviously being unable to parent M.C. presently or at any time in the foreseeable future, respondent was permitted to demand visitation with a child of tender years, to whom he was a stranger, for no reason other than he is the biological father. This not only ignores the standard of a child's best interests but reinforces what should be a long-dead common-law concept of children as the property of their father. See Michael Grossberg, Governing the Hearth: Law and the Family in Nineteenth-Century America (1985). Such a practice should not be encouraged under circumstances like the facts in this case. Now that the matter has proceeded to termination of parental rights, and the trial court concluded termination was appropriate, this experience served no beneficial purpose for M.C. and was not in her best interests. Perhaps the even more pertinent question is why such an experience was required in the first place. However, this is a question to be left for another day.

¶ 31 Respondent has been incarcerated for all of M.C.'s life. He has not provided the financial, physical, or emotional support M.C. needs and deserves. His repeated incarceration demonstrates an inability to conform to societal norms and has prevented him from discharging his parental responsibilities. D.D. , 196 Ill. 2d at 421, 256 Ill.Dec. 870, 752 N.E.2d 1112. Moreover, his incarceration raises the inference he "will continue to be unavailable and inadequate as a parent." M.M.J. , 313 Ill. App. 3d at 355, 245 Ill.Dec. 880, 728 N.E.2d 1237. Based on the evidence in the record, we conclude the trial court's finding of unfitness on this ground was not against the manifest weight of the evidence. Because the grounds of unfitness are independent, we need not address the remaining grounds. See In re H.D. , 343 Ill. App. 3d 483, 493, 278 Ill.Dec. 194, 797 N.E.2d 1112, 1120 (2003) ("As the grounds for unfitness are independent, the trial court's judgment may be affirmed if the evidence supports the finding of unfitness on any one of the alleged statutory grounds.").

¶ 32 B. Best-Interests Finding

¶ 33 Respondent argues the trial court's finding it was in the minor's best interests for his parental rights to be terminated was against the manifest weight of the evidence. We disagree.

¶ 34 "Courts will not lightly terminate parental rights because of the fundamental importance inherent in those rights." In re Veronica J. , 371 Ill. App. 3d 822, 831, 311 Ill.Dec. 148, 867 N.E.2d 1134, 1142 (2007) (citing In re M.H. , 196 Ill. 2d 356, 362-63, 256 Ill.Dec. 297, 751 N.E.2d 1134, 1140 (2001) ). "[A]t a best-interests hearing, the parent's interest in maintaining the parent-child relationship must yield to the child's interest in a stable, loving home life." In re D.T. , 212 Ill. 2d 347, 364, 289 Ill.Dec. 11, 818 N.E.2d 1214, 1227 (2004) ; In re Julian K. , 2012 IL App (1st) 112841, ¶ 80, 359 Ill.Dec. 419, 966 N.E.2d 1107 (stating once the trial court finds the parent unfit, "all considerations, including the parent's rights, yield to the best interests of the child"). When considering whether termination of parental rights is in a child's best interests, the trial court must consider a number of factors within "the context of the child's age and developmental needs." 705 ILCS 405/1-3(4.05) (West 2016). These include the following:

"(1) the child's physical safety and welfare; (2) the development of the child's identity; (3) the child's familial, cultural[,] and religious background and ties; (4) the child's sense of attachments, including love, security, familiarity, continuity of affection, and the least[-]disruptive placement alternative; (5) the child's wishes and long-term goals; (6) the child's community ties; (7) the child's need for permanence, including the need for stability and continuity of relationships with parent figures and siblings; (8) the uniqueness of every family and child; (9) the risks related to substitute care; and (10) the preferences of the person available to care for the child." In re Daphnie E. , 368 Ill. App. 3d 1052, 1072, 307 Ill.Dec. 123, 859 N.E.2d 123, 141 (2006).

See also 705 ILCS 405/1-3(4.05)(a)-(j) (West 2016).

¶ 35 A trial court's finding that termination of parental rights is in a child's best interests will not be reversed on appeal unless it is against the manifest weight of the evidence. In re Dal. D. , 2017 IL App (4th) 160893, ¶ 53, 412 Ill.Dec. 262, 74 N.E.3d 1185. The court's decision will be found to be "against the manifest weight of the evidence only if the opposite conclusion is clearly apparent or the decision is unreasonable, arbitrary, or not based on the evidence." In re Keyon R. , 2017 IL App (2d) 160657, ¶ 16, 411 Ill.Dec. 532, 73 N.E.3d 616.

¶ 36 In the case sub judice , the best-interests report indicated M.C. and her older brother have resided in a traditional foster home since August 2016. M.C. was placed with her foster parents when she was 10 months old, and she has bonded with them, knows them as her parents, and shows affection toward them. M.C. and her brother enjoy spending time with their foster parents' extended family members. The report stated the foster parents "have expressed a strong desire to adopt" the minors. M.C. appears to be thriving in the environment, and her emotional, physical, and medical needs are being met. Smith testified respondent has sent cards and letters to M.C., but the earliest he could be released from prison would be 2022. In recommending respondent's parental rights be terminated, the report concluded the "foster parents have demonstrated their ability to not only meet the children's basic needs, but have also demonstrated their commitment to being safe, stable and nurturing parents since August 2016."

¶ 37 The trial court considered the statutory best-interests factors and found M.C.'s foster parents provide her with "arguably the most important of the factors to consider-that's stability." They have met the needs of M.C. and her brother, "maintained for the children a sense of normalcy," and were "committed to providing these children with a safe, stable, and nurturing environment."

¶ 38 The evidence indicated M.C. is in a good home, her needs are being met, and she is thriving in her current placement. Her foster parents are willing to adopt her, which will provide her with the permanency she needs and deserves. Respondent, however, has not been a parent to M.C. during her young life and will remain unable to be a parent for the foreseeable future due to his prison sentence. Considering the evidence and the best interests of the minor, we find the trial court's order terminating respondent's parental rights was not against the manifest weight of the evidence.

¶ 39 III. CONCLUSION

¶ 40 For the reasons stated, we affirm the trial court's judgment.

¶ 41 Affirmed.

Presiding Justice Harris and Justice Turner concurred in the judgment and opinion.


source: Caselaw Access Project

license: Public Domain

text:
    Paulette CROSSON, Plaintiff-Appellant, v. Bob RUZICH and Pam Ruzich, Defendants-Appellees.
    NO. 5-17-0235
    Appellate Court of Illinois, Fifth District.
    Opinion Filed: July 31, 2018
    Tyler N. Dihle, of Prince Law Firm, of Marion, for appellant.
    Charles E. Schmidt and Phillip G. Palmer Jr., of Brandon & Schmidt, of Carbondale, for appellees.
   JUSTICE CATES delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Paulette Crosson, sought damages from defendants, Bob Ruzich and Pam Ruzich, for personal injuries sustained after she fell while on defendants' property. The circuit court entered summary judgment in favor of defendants on plaintiff's negligence claim and dismissed plaintiff's claim alleging defendants violated the Animal Control Act (Act) ( 510 ILCS 5/16 (West 2012) ). Plaintiff appeals from the circuit court's orders. We affirm.

¶ 2 In 2012, plaintiff was a certified nursing assistant, providing home health care services. In August and September 2012, plaintiff provided home health care to Pam Ruzich's grandmother, who resided at defendants' home. Plaintiff visited defendants' home to provide health care services on eight occasions, each time entering and exiting the home through the front entrance. Plaintiff accessed the front door by walking up several stairs leading to a front porch. The top stair was level with the porch floor.

¶ 3 While plaintiff was caring for Pam's grandmother, plaintiff and Pam became friends. During the fall of 2012, plaintiff made two social visits to defendants' home, each time accessing the home by walking up the front stairs, onto the porch, and into defendants' home.

¶ 4 On March 19, 2013, plaintiff was a guest at defendants' home. As she had done on prior occasions, plaintiff walked up the stairs leading to the porch and entered defendants' home. Plaintiff stayed for a short while and then exited the house. When plaintiff exited the home, while standing on the top step of the porch stairs, defendants' dog, Moxie, approached plaintiff and stood to plaintiff's left. Plaintiff then began petting Moxie. In her deposition, plaintiff described what happened next as follows:

"Q. Moxie didn't push you off the porch, did she?
A. She did not push me. No.
Q. So while you were petting Moxie, looking away from the house, what happened?
A. Well, I just moved my foot over. I mean I don't know. I was on the edge just to get my balance a little more and it started to go off the edge.
Q. Okay. Your foot went off the edge?
A. A little bit. Yes.
Q. Okay. I see. So you took a little bit of a step to keep your balance and in the course of doing that your foot went off the edge?
A. Yes.
* * *
Q. Nothing about the condition of the porch caused you to lose your balance; am I right?
A. No.
Q. Nothing about the condition of the step caused you to lose your balance?
A. No.
Q. Nothing about the dog caused you to lose your balance; am I right?
A. Well, she was close to me. Yeah.
Q. So the dog caused you to lose your balance?
A. Well, she caused me to probably put my foot over the edge a little more, you know, so that-
Q. Okay.
A. Because, I mean, you know animals, when you're petting them, they get closer to you.
Q. Right.
A. I want more. I want more. Yeah.
Q. So as the dog was enjoying you petting her-
A. Uh-huh.
Q. -you would have moved your foot and in the course of moving your foot it went off the edge?
A. Yes.
Q. Okay. I understand. So I want to make sure I'm clear on this. Nothing about the condition of the property, the step, porch, nothing about the condition of the property had anything to do with your fall; am I right?
A. No.
* * *
Q. Okay. Thank you. The only thing that might have contributed to your fall is Moxie was enjoying being petted and was nuzzling up to you and in the course of doing that you stepped off the edge of the step; is that correct?
A. Yeah. My foot went over a little bit off of the edge."

¶ 5 When plaintiff's foot went over the edge of the top stair, she stretched to avoid stepping on a flowerpot and landed in an elevated rock garden below the porch. As a result of her fall, plaintiff claimed she sustained severe injuries to her right foot.

¶ 6 On February 23, 2015, plaintiff filed a one-count complaint against defendants alleging negligence. Defendants filed a motion pursuant to section 2-615 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-615 (West 2014) ), asserting the complaint failed to allege facts establishing the existence of an unreasonably dangerous condition that would give rise to a duty and for which liability could be asserted. On April 10, 2015, plaintiff filed a first amended complaint. Defendants filed their answer denying liability on April 27, 2015. As a part of their responsive pleading, defendants also raised affirmative defenses.

¶ 7 On February 5, 2016, plaintiff filed a second amended complaint. Count I of plaintiff's complaint realleged her negligence allegations. Count II of the second amended complaint alleged defendants were liable pursuant to the Act. In count II, plaintiff alleged that defendants' dog "moved into Plaintiff and knocked her off the steps into the rock garden." On July 15, 2016, defendants moved to dismiss plaintiff's claim under the Act pursuant to section 2-619 of the Code ( 735 ILCS 5/2-619 (West 2016) ), asserting the claim was barred by the statute of limitations. Defendants also asserted that plaintiff had failed to allege any facts that would give rise to liability under the Act, as there were no allegations that plaintiff was injured as a result of an attack or injury caused by defendants' dog. Therefore, defendants claimed plaintiff's second amended complaint should also be dismissed pursuant to section 2-615 of the Code.

¶ 8 On November 2, 2016, defendants moved for summary judgment on plaintiff's negligence claim, asserting there were no dangerous conditions present on defendants' property or, alternatively, that even if there were any dangerous conditions present, the conditions were open and obvious to plaintiff. As such, defendants claimed there was no duty owed to plaintiff. In her response to defendants' motion for summary judgment, plaintiff claimed that a question of fact remained as to whether she was distracted by the dog at the time she was injured and that, therefore, the "distraction exception" to the open and obvious rule applied.

¶ 9 On January 27, 2017, the circuit court entered an order granting defendants' motion for summary judgment on plaintiff's negligence claim raised in count I of her second amended complaint. The circuit court found that plaintiff admitted in her deposition that there was nothing about the condition of the premises, including the steps or the porch, that caused or contributed to her fall. The court further found that plaintiff's conduct of petting defendants' dog immediately prior to her fall was, at most, a voluntary distraction, and not a foreseeable cause of plaintiff's injury. That same day, the circuit court entered a second order granting defendants' motion to dismiss count II of plaintiff's second amended complaint pursuant to section 2-615. The court found plaintiff failed to state a claim pursuant to the Act, in that she did not set forth facts alleging an attack or injury by defendants' dog. The court dismissed count II without prejudice and granted plaintiff leave to replead.

¶ 10 On February 24, 2017, plaintiff filed a third amended complaint against defendants. In count I, plaintiff realleged her negligence claim in order to avoid waiving her right to appeal on that count. Plaintiff amended count II of her complaint to allege that while she was petting Moxie, "the dog moved into Plaintiff, causing her to lose her footing and fall off the step into a rock garden," thereby causing her injury.

¶ 11 Defendants filed another motion to strike, dismiss, or make more definite and certain pursuant to section 2-615, asserting plaintiff's most recent allegations were, in substance, the same as those contained in her prior complaint and contained no additional facts that would give rise to a claim under the Act. The circuit court entered a second order on June 9, 2017, dismissing count II with prejudice. The court found that plaintiff failed to set forth any additional facts, as compared to plaintiff's second amended complaint, that would give rise to a cause of action under the Act. As before, the court also reiterated that plaintiff's third amended complaint failed to allege any facts that showed "an attack or injury by the dog."

¶ 12 On appeal, plaintiff contends the circuit court erred in granting summary judgment in favor of defendants on her negligence claim because there was a question of fact as to whether plaintiff was distracted by defendants' dog. Defendants assert they were entitled to summary judgment on plaintiff's negligence claim because they did not owe plaintiff a duty, in that there were no dangerous conditions present on their property and, alternatively, that any alleged dangerous conditions were open and obvious.

¶ 13 Summary judgment is proper when the pleadings, affidavits, depositions, admissions, and exhibits on file demonstrate there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2016); Rexroad v. City of Springfield , 207 Ill. 2d 33, 38-39, 277 Ill.Dec. 674, 796 N.E.2d 1040 (2003). The record is viewed in the light most favorable to the nonmoving party. Rexroad , 207 Ill. 2d at 39, 277 Ill.Dec. 674, 796 N.E.2d 1040. This court reviews a grant of summary judgment de novo . Forsythe v. Clark USA, Inc. , 224 Ill. 2d 274, 280, 309 Ill.Dec. 361, 864 N.E.2d 227 (2007).

¶ 14 To sustain a claim for negligence, the plaintiff must demonstrate that the defendant owed plaintiff a duty of care and defendant breached that duty, which proximately caused plaintiff's injury.

Forsythe , 224 Ill. 2d at 280, 309 Ill.Dec. 361, 864 N.E.2d 227. Whether the defendants had a duty is a question of law for the court to decide. Forsythe , 224 Ill. 2d at 280, 309 Ill.Dec. 361, 864 N.E.2d 227.

¶ 15 A landowner has a duty to use reasonable care to maintain his premises in a reasonably safe condition. Ward v. K Mart Corp. , 136 Ill. 2d 132, 141, 143 Ill.Dec. 288, 554 N.E.2d 223 (1990). Therefore, a property owner must remove or correct any dangerous condition present on his premises or provide a warning of the dangerous condition to invitees. Ward , 136 Ill. 2d at 141-42, 143 Ill.Dec. 288, 554 N.E.2d 223. A landowner, however, is generally not required to foresee and protect others against an injury if a potentially dangerous condition is open and obvious. Rexroad , 207 Ill. 2d at 44, 277 Ill.Dec. 674, 796 N.E.2d 1040. Open and obvious conditions are those where the condition and risk are apparent and would be recognized by a reasonable person exercising ordinary perception, intelligence, and judgment. Bruns v. City of Centralia , 2014 IL 116998, ¶ 16, 386 Ill.Dec. 765, 21 N.E.3d 684.

¶ 16 There are two limited exceptions to the rule that a property owner has no legal duty to protect others from open and obvious conditions, the "distraction exception" and the "deliberate encounter exception." Sollami v. Eaton , 201 Ill. 2d 1, 15, 265 Ill.Dec. 177, 772 N.E.2d 215 (2002). Under the distraction exception, a landowner owes an invitee a duty of due care if he has a reason to expect that the invitee's attention may be distracted, so that he will not discover the obvious condition, will forget about the condition, or will fail to protect himself against it. Rexroad , 207 Ill. 2d at 44-45, 277 Ill.Dec. 674, 796 N.E.2d 1040 ; Sollami , 201 Ill. 2d at 15, 265 Ill.Dec. 177, 772 N.E.2d 215. Under the distraction exception, there must be some circumstance present, reasonably foreseeable by the defendant, which required the plaintiff to divert his attention from the open and obvious condition or otherwise prevented him from avoiding the risk. Bruns , 2014 IL 116998, ¶¶ 28-29, 386 Ill.Dec. 765, 21 N.E.3d 684. A defendant is not responsible for anticipating and protecting against voluntary distractions solely of the plaintiff's own creation. Bruns , 2014 IL 116998, ¶¶ 28-29, 386 Ill.Dec. 765, 21 N.E.3d 684.

¶ 17 The underlying facts are not in dispute, and the only issue is whether, under the present facts, defendants owed a duty to plaintiff. In her second amended complaint, plaintiff alleged defendants' property was unsafe because the porch did not have a railing and there was a rock garden below the porch. Plaintiff also alleged defendants failed to warn her of these unsafe conditions.

¶ 18 Plaintiff, however, repeatedly admitted during her deposition that nothing about the condition of defendants' property, including the porch or the stairs, caused her to lose her balance or contributed to her fall. Plaintiff also testified during her deposition that she never noticed any dangerous or concerning conditions with the porch or stairs during any of her visits to defendants' property. In light of plaintiff's admissions that there were no dangerous conditions on the property that contributed to her fall, it cannot be said that defendants owed plaintiff a duty to remediate or warn plaintiff of a dangerous condition or that their failure to do so caused plaintiff's injury.

¶ 19 On appeal, plaintiff does not challenge the circuit court's ruling on this issue. Instead, plaintiff only seeks review of the circuit court's finding that her act of petting defendants' dog was a voluntary distraction. The nature of plaintiff's alleged distraction, however, is relevant only if there was an open and obvious dangerous condition on the property, the absence of which plaintiff does not contest.

¶ 20 Plaintiff has failed to demonstrate that there was a dangerous condition on defendants' property and that defendants owed her a duty of care. Accordingly, there is no basis for us to reach the issue of whether plaintiff's activity of petting Moxie was a voluntary distraction. Therefore, the circuit court did not err in its finding that there was no genuine issue of material fact, and defendants are entitled to judgment as a matter of law.

¶ 21 Next, plaintiff asserts the circuit court erred in dismissing her claim under the Act because she properly alleged that defendants' dog caused her injury. A section 2-615 motion attacks the legal sufficiency of the complaint, and raises the question of whether the complaint states a cause of action upon which relief can be granted. Oldendorf v. General Motors Corp. , 322 Ill. App. 3d 825, 828, 256 Ill.Dec. 161, 751 N.E.2d 214 (2001). When ruling on the motion, the court may only consider the facts apparent from the face of the pleadings, matters of which the court may take judicial notice, and judicial admissions in the record. Oldendorf , 322 Ill. App. 3d at 828, 256 Ill.Dec. 161, 751 N.E.2d 214. All well-pleaded facts alleged in the complaint, and all reasonable inferences therefrom, are taken as true. Oldendorf , 322 Ill. App. 3d at 828, 256 Ill.Dec. 161, 751 N.E.2d 214. The allegations are construed in the light most favorable to the plaintiff. Oldendorf , 322 Ill. App. 3d at 828, 256 Ill.Dec. 161, 751 N.E.2d 214. We review the circuit court's dismissal of a plaintiff's complaint for failure to state a cause of action de novo . Oldendorf , 322 Ill. App. 3d at 828, 256 Ill.Dec. 161, 751 N.E.2d 214.

¶ 22 Section 16 of the Act provides as follows:

"If a dog or other animal, without provocation, attacks, attempts to attack, or injures any person who is peaceably conducting himself or herself in any place where he or she may lawfully be, the owner of such dog or other animal is liable in civil damages to such person for the full amount of the injury proximately caused thereby." 510 ILCS 5/16 (West 2012).

¶ 23 The purpose of the Act is to encourage the tight control over animals. Partipilo v. DiMaria , 211 Ill. App. 3d 813, 816, 156 Ill.Dec. 207, 570 N.E.2d 683 (1991). While the language of the statute appears absolute, it does not impose strict liability on animal owners. Partipilo , 211 Ill. App. 3d at 816, 156 Ill.Dec. 207, 570 N.E.2d 683.

¶ 24 To sustain a claim under section 16 of the Act, a plaintiff must prove: (1) injury caused by an animal owned by the defendant; (2) lack of provocation; (3) peaceable conduct by the plaintiff; and (4) the presence of the plaintiff in a place where she had a legal right to be. King v. Ohren , 198 Ill. App. 3d 1098, 1100, 145 Ill.Dec. 138, 556 N.E.2d 756 (1990). It is not necessary for the animal to attack, and the plaintiff can recover when any action by the animal causes the plaintiff injury, even if the action is harmless in itself. Parikh v. Gilchrist , 2017 IL App (1st) 160532, ¶ 26, 418 Ill.Dec. 181, 89 N.E.3d 1015.

¶ 25 Defendants do not dispute that they owned the dog, that plaintiff did not provoke the dog, and that plaintiff was peaceably conducting herself in a place where she had a lawful right to be. The sole issue in dispute is whether plaintiff's injury was the result of the dog's conduct.

¶ 26 An animal is the proximate cause of an injury only when the injury was caused by the conduct of the dog and not by the plaintiff's independent act. King , 198 Ill. App. 3d at 1101, 145 Ill.Dec. 138, 556 N.E.2d 756. The dog must engage in some affirmative behavior that causes injury to the plaintiff and it is insufficient if the dog is an " 'inert or passive force.' " Coe v. Lewsader , 2016 IL App (4th) 150841, ¶ 15, 407 Ill.Dec. 1018, 64 N.E.3d 817 (quoting Bailey v. Bly , 87 Ill. App. 2d 259, 262, 231 N.E.2d 8 (1967) ). The dog must make some overt act toward the plaintiff in order for liability to attach. Coe , 2016 IL App (4th) 150841, ¶ 15, 407 Ill.Dec. 1018, 64 N.E.3d 817 ; Bailey , 87 Ill. App. 2d at 262, 231 N.E.2d 8. Not every overt act, however, is sufficient to establish liability. King , 198 Ill. App. 3d at 1102, 145 Ill.Dec. 138, 556 N.E.2d 756. Although proximate cause of an injury is usually a question of fact, it is a question of law when the facts are undisputed and there can be no difference in the judgment of reasonable people as to the inferences to be drawn from them. Parikh , 2017 IL App (1st) 160532, ¶ 28, 418 Ill.Dec. 181, 89 N.E.3d 1015.

¶ 27 In this case, plaintiff alleged she was petting Moxie when "the dog moved into [her], causing her to lose her footing and fall off the step into a rock garden." In her deposition, plaintiff clarified that other than her own act of petting Moxie, the dog never came into contact with plaintiff but simply inched closer to plaintiff to encourage plaintiff to continue petting her. Plaintiff then readjusted her position and, in doing so, stepped over the edge of the top stair and lost her balance. Taking plaintiff's allegations as true, and construing the facts in the light most favorable to plaintiff, plaintiff has failed to allege facts raising a claim under the Act.

¶ 28 We find the case before us most analogous to King , 198 Ill. App. 3d 1098, 145 Ill.Dec. 138, 556 N.E.2d 756. In King , the defendant's dog walked next to the plaintiff as she was carrying a pot of boiling water from the stove to the sink. As the plaintiff went to put her foot down, she stepped backward to avoid the dog and scalded herself. King , 198 Ill. App. 3d at 1102, 145 Ill.Dec. 138, 556 N.E.2d 756. On appeal, the court rejected plaintiff's claim that the dog caused her injuries because the dog was in her way and she was forced to alter her step to avoid it. King , 198 Ill. App. 3d at 1102, 145 Ill.Dec. 138, 556 N.E.2d 756. Although the dog had been moving shortly before the plaintiff put her foot down, the court noted it was " 'the nature of dogs to move.' " King , 198 Ill. App. 3d at 1102, 145 Ill.Dec. 138, 556 N.E.2d 756. Instead, the court found the dog was a passive force, which "did not advance toward her and was acting in a predictable fashion based upon plaintiff's previous experience." King , 198 Ill. App. 3d at 1102, 145 Ill.Dec. 138, 556 N.E.2d 756. The court found an animal is a passive casual force and not the proximate cause of an injury if it stands still or moves away from a person in a usual, predictable manner. King , 198 Ill. App. 3d at 1102, 145 Ill.Dec. 138, 556 N.E.2d 756.

¶ 29 While the case sub judice differs slightly from King , in that Moxie was moving toward plaintiff, as opposed to standing still, Moxie's behavior, as described by plaintiff, does not suffice as an overt act imposing liability. The complaint and record indicate that Moxie adjusted her position to get closer to plaintiff in response to plaintiff's show of affection. Plaintiff's deposition testimony indicates she was familiar with Moxie and knew that Moxie's behavior of inching toward plaintiff in response to being petted was consistent and predictable behavior not just for Moxie but for domesticated animals in general. Plaintiff did not allege, and nothing in the record supports a finding, that Moxie was out of control or that her actions were startling, irregular, or erratic. Moxie's conduct in this case was not the type of behavior contemplated by the Act, and imposing liability under these facts would amount to strict liability for dog ownership, a result not intended by the statute.

¶ 30 The pleadings and deposition indicate Moxie was a passive casual force and that it was plaintiff's independent action of moving her foot to readjust her balance that caused her to lose her footing and fall. The fact that Moxie was benignly moving while standing near plaintiff does not translate into a finding that Moxie's movement caused plaintiff's injury. Plaintiff has failed to allege any facts supporting a finding that Moxie was the proximate cause of plaintiff's injuries, and the circuit court did not err in dismissing plaintiff's claim under the Act.

¶ 31 Affirmed.

Presiding Justice Barberis and Justice Moore concurred in the judgment and opinion.


author: Bradford, Judge.

text:
    CITY OF LAWRENCEBURG, Indiana and City of Lawrenceburg Board of Works, Appellants-Defendants, v. Grant HUGHES, Appellee-Plaintiff.
    Court of Appeals Case No. 18A-PL-439
    Court of Appeals of Indiana.
    Filed August 27, 2018 Publication ordered September 12, 2018
    Attorney for Appellants: Leanna Weissmann, Lawrenceburg, Indiana
    Attorneys for Appellee: Mary Jane Lapointe, Daniel Lapointe Kent, Lapointe Law Firm, P.C., Indianapolis, Indiana
   Bradford, Judge.

Case Summary

[1] Former Lawrenceburg Redevelopment Director/Mayor's Assistant Grant Hughes sued the City of Lawrenceburg and the Lawrenceburg Board of Public Works (collectively, "the City") seeking compensation to which he claimed to be entitled following his termination. The trial court considered competing summary judgment motions before ruling in Hughes's favor. We affirm.

Facts and Procedural History

[2] Hughes entered into an employment contract (the "Agreement") with the City on March 17, 2014. The Agreement was signed by then-Mayor Dennis Carr and each member of the Board of Works. It was also signed by Hughes.

[3] According to the terms of the Agreement, Hughes's employment commenced on March 17, 2014, "and shall continue until the 17th day of March, 2015." Appellant's App. Vol. II, p. 17. The Agreement provided that "[u]nless terminated [pursuant to the terms of the Agreement], and unless either party gives at least sixty (60) days notice of an intention to terminate the Agreement at the end of a given term, this Agreement and term of [Hughes's] employment shall be automatically extended for consecutive one (1) year terms." Appellant's App. Vol. II, p. 17. The parties agreed that Hughes would be compensated at a rate of $85,202.00 per year. The Agreement further provided as follows:

In the event the City discontinues operating the offices of the Redevelopment Director and/or the Mayor's Assistant, then this Agreement shall terminate as of the date of the discontinuance of operation of said office, and on the same date, the City shall be obligated to pay [Hughes] the balance of his compensation under this Agreement, including the costs of all benefits.
* * * *
If [Hughes] is terminated without cause, [Hughes] shall be entitled to receive the balance of his compensation under this Agreement, including the cost of all benefits. The City may terminate the Agreement without cause upon thirty (30) days written notice and approval of the majority vote of the Board of Works.

Appellant's App. Vol. II, p. 19.

[4] Hughes was employed by the City until November 12, 2015, when he was notified by Mayor Carr that the City had decided to eliminate Hughes's position. Mayor Carr further notified Hughes that, pursuant to the terms of the Agreement, "all existing employee benefits will remain in effect until March 17, 2016." Appellant's App. Vol. II, p. 102. Mayor Carr's successor, Mayor Kelly Mollaun, subsequently notified Hughes that as of January 4, 2016, the City had terminated his benefits and salary rather than continuing payment until the March 17, 2016 date required by the terms of the Agreement.

[5] Following the termination of his employment, on July 13, 2016, Hughes filed suit against the City seeking compensation for the period between January 4, 2016 and the March 17, 2016 Agreement expiration date. The parties filed competing summary judgment motions. Following a hearing on the parties' motions, the trial court granted Hughes's summary judgment motion, denied the City's summary judgment motion, and entered judgment against the City in the amount of $42,378.54.

Discussion and Decision

[6] The City contends that the trial court erred in granting Hughes's summary judgment motion. In challenging the trial court's award of summary judgment to Hughes, the City does not point to any designated evidence that it claims creates an evidentiary issue of material fact. Rather, it makes three legal arguments as to why it believes it was improper to grant summary judgment in favor of Hughes.

Our standard of review of a summary judgment order is well-settled: summary judgment is appropriate if the "designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Ind. Trial Rule 56(C).... A genuine issue of material fact exists where facts concerning an issue which would dispose of the litigation are in dispute or where the undisputed material facts are capable of supporting conflicting inferences on such an issue. [ Commercial Coin Laundry Sys. v. Enneking , 766 N.E.2d 433, 438 (Ind. Ct. App. 2002) ]. Even if the facts are undisputed, summary judgment is inappropriate where the record reveals an incorrect application of the law to the facts. Id.
On appeal, we are bound to the same standard as the trial court, and we consider only those matters which were designated at the summary judgment stage. Id. We do not reweigh the evidence, but we liberally construe all designated evidentiary material in the light most favorable to the nonmoving party to determine whether there is a genuine issue of material fact for trial. Id. A grant of summary judgment may be affirmed upon any theory supported by the designated materials. Id. at 439. The fact that the parties make cross-motions for summary judgment does not alter our standard of review. Id.

Huntington v. Riggs , 862 N.E.2d 1263, 1266 (Ind. Ct. App. 2007), trans. denied .

[7] The City argues that the Agreement is void and unenforceable because it violates the provisions of Indiana Code section 36-4-8-12(b), which indicates that a representative of a city "may not obligate the city to any extent beyond the amount of money appropriate for that department.... An obligation made in violation of this section is void." The crux of the City's argument is that the Agreement is void and unenforceable under Indiana Code section 36-4-8-12(b) because it subjected the City to an ongoing obligation that was unfunded after the first year. However, when read as a whole, it is clear that Indiana Code section 36-4-8-12 does not apply to employees but rather to other types of contracts entered into on behalf of a city. Thus, the City's reliance on this provision is misplaced.

[8] The City also argues that the Agreement violates the provisions of Indiana Code section 36-4-7-3. The relevant portion of Indiana Code section 36-4-7-3, which involves employee compensation, provides as follows:

(b) Subject to the approval of the city legislative body, the city executive shall fix the compensation of each appointive officer, deputy, and other employee of the city. The legislative body may reduce but may not increase any compensation fixed by the executive. Compensation must be fixed under this section not later than November 1 of each year for the ensuing budget year.

In this case, the Board of Works fixed and budgeted for Hughes's salary at all times relevant to the Agreement. The designated evidence shows that funds were apportioned for Hughes's position during both the 2014-2015 and 2015-2016 contract years. It also establishes that the decision of whether to renew the Agreement for an additional year was to be made before the November 1 deadline set forth in Indiana Code section 36-4-7-3.

[9] Finally, the City argues that the contract is void because it violated the provisions of Indiana Code section 36-4-9-2 by binding the new mayor to employment decisions made by the prior mayor. Hughes does not dispute the City's assertion that Mayor Mollaun could not be bound by Mayor Carr's employment decisions. He argues, however, that the Agreement did not violate this provision as subsequent mayors were not bound by Mayor Carr's decision to employ him as it expressly provided the procedure for calculating amounts due upon expiration of the Agreement, the elimination of his position, or his termination.

[10] The Agreement provided that the City could, at any time, decide to eliminate Hughes's position or terminate Hughes's employment without cause. In fact, Hughes's position was eliminated on November 12, 2015. The Agreement stated that if the City decided to eliminate Hughes's position or terminate his employment, it was obligated to pay Hughes "the balance of his compensation under this Agreement, including the cost of all benefits." Appellant's App. Vol. II, p. 19. The designated evidence establishes that the City chose to exercise its right to eliminate Hughes's position but failed to compensate Hughes according to these terms.

Conclusion

[11] We conclude that record does not reveal any incorrect application of the law to the facts. In addition, the City does not point to any designated evidence that would render the trial court's award of summary judgment in Hughes's favor improper. The designated evidence supports the trial court's award of summary judgment for Hughes as it proves that the parties entered into a valid employment contract and that the City breached this contract by failing to compensate Hughes through March 17, 2016.

[12] The judgment of the trial court is affirmed.

Brown, J., and Altice, J., concur.

Order

[1] Appellants, by counsel, filed a Motion to Publish Memorandum Opinion.

[2] Having reviewed the matter, the Court finds and orders as follows:

1. The Appellants' Motion to Publish Memorandum Opinion is granted.
2. This Court's opinion heretofore handed down in this cause on August 27, 2018, marked Memorandum Decision, is now ordered published.
3. The Clerk of this Court is directed to send copies of said opinion together with copies of this order to the West Publishing Company and to all other services to which published opinions are normally sent.

[3] Ordered 9/12/2018.

[4] Bradford, Brown, Altice, JJ., concur.


author: Baker, Judge.

text:
    Douglas C. HOLLAND, Appellant-Defendant, v. INDIANA FARM BUREAU INSURANCE, Appellee-Plaintiff
    Court of Appeals Case No. 18A-PL-792
    Court of Appeals of Indiana.
    Filed August 28, 2018
    Appellant Pro Se: Douglas C. Holland, Lawrenceburg, Indiana
    Attorney for Appellee: Michelle A. Cobourn-Baurley, Shelbyville, Indiana
   Baker, Judge.

[1] Indiana Farm Bureau Insurance (Farm Bureau) sued attorney Douglas Holland to recover money owed to it from a subrogation claim that arose from Holland's representation of a woman (Client) who was injured in a vehicle collision. Farm Bureau and Holland filed competing motions for summary judgment on Farm Bureau's ability to recover its money from Holland, rather than Client. The trial court found in favor of Farm Bureau, and Holland now appeals. Finding that the statute of limitations expired before Farm Bureau filed its complaint, we reverse and remand.

Facts

[2] On September 19, 2012, Client was injured in a vehicle collision, after which Client retained Holland as her attorney in her personal injury lawsuit against the tortfeasor. On November 20, 2012, Farm Bureau, which insured Client, paid $5,000 toward Client's medical bills. In December 2014, the personal injury lawsuit settled in Client's favor and on December 22, 2014, Holland filed a motion to dismiss it, which the trial court granted. Holland requested Client to allow him to retain $3,500 of her settlement to cover any subrogation claims that Farm Bureau might have for one year beginning on December 22, 2014.

[3] Meanwhile, on August 28, 2014, Farm Bureau submitted a notice of its lien rights to Holland. On September 4, 2014, Holland acknowledged the lien in writing. On October 31, 2014, Holland called Farm Bureau's counsel's office and requested that Farm Bureau waive its subrogation claim. Holland and Farm Bureau then unsuccessfully tried to negotiate the subrogation amount. On June 9, 2015, Farm Bureau asked that Holland request a damages hearing so that the trial court presiding over Client's lawsuit against the tortfeasor could determine the amount of the subrogation claim. Holland stated that the lawsuit had been dismissed and that Farm Bureau would have to file a small claim to determine what amount, if any, Client owed it. This exchange was apparently the last one between the parties for the remainder of 2015. On December 29, 2015, Client asked Holland to return to her the balance of the settlement; Holland complied.

[4] Then, on July 13, 2017, Farm Bureau made a formal demand for payment of its subrogation claim. On September 14, 2017, Farm Bureau filed a complaint against Holland for its subrogation claim for $3,333, alleging that Holland breached the fiduciary duty he owed to Farm Bureau and that he breached the constructive trust imposed on the money at issue. On September 27, 2017, Holland filed his answer, alleging that he had no legal authority to pay Farm Bureau without Client's consent. That same day, he filed a motion for summary judgment, arguing that the statute of limitations had run and that he had no legal requirement to withhold subrogation funds from Client's settlement.

[5] On October 27, 2017, Farm Bureau filed its own motion for summary judgment, arguing that it had a medical payments lien, that Holland had a fiduciary duty to Farm Bureau, that a constructive trust was created when Holland received funds in which Farm Bureau had an interest, and that the applicable statute of limitations is six years and had not yet run.

[6] On January 18, 2018, a hearing on the motions for summary judgment took place. Following the hearing, the trial court granted Farm Bureau's motion for summary judgment and motion to strike, ordering Holland to pay Farm Bureau $3,333, and denied Holland's motion for summary judgment. The trial court did not issue findings of fact or conclusions of law. On February 13, 2018, Holland filed a motion to correct error, arguing that the trial court erred by granting Farm Bureau's motion for summary judgment. That same day, he filed two more motions for summary judgment: one arguing that there is no subject matter jurisdiction in this case because Farm Bureau's claim is a contractual one and Farm Bureau has not presented any legal theory of liability against Holland; and one arguing that as an agent, he was not liable to Farm Bureau. The trial court denied all three post-judgment motions. Holland now appeals.

Discussion and Decision

[7] Holland raises three issues on appeal, one of which we find dispositive: whether the trial court erred by granting Farm Bureau's motion for summary judgment and by denying Holland's motion for summary judgment.

[8] Our standard of review on summary judgment is well established:

We review summary judgment de novo, applying the same standard as the trial court: "Drawing all reasonable inferences in favor of ... the non-moving parties, summary judgment is appropriate 'if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.' " Williams v. Tharp , 914 N.E.2d 756, 761 (Ind. 2009) (quoting T.R. 56(C) ). "A fact is 'material' if its resolution would affect the outcome of the case, and an issue is 'genuine' if a trier of fact is required to resolve the parties' differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences." Id. (internal citations omitted).

Hughley v. State , 15 N.E.3d 1000, 1003 (Ind. 2014).

[9] The law regarding subrogation is also well settled:

Subrogation is a doctrine of equity long recognized in Indiana. It applies whenever a party, not acting as a volunteer, pays the debt of another that, in good conscience, should have been paid by the one primarily liable. When a claim based on subrogation is recognized, "a court substitutes another person in the place of a creditor, so that the person in whose favor it is exercised succeeds to the right of the creditor in relation to the debt." Matter of Estate of Devine , 628 N.E.2d 1227, 1230 n.4 (Ind. Ct. App. 1994). It is settled that "[s]ubrogation confers no greater right than the subrogor had at the time the surety or indemnitor became subrogated. The subrogator [sic] insurer stands in the same position as the subrogor, for one cannot acquire by subrogation what another, whose rights he claims, did not have." American States Ins. Co. v. Williams , 151 Ind. App. 99, 106, 278 N.E.2d 295, 300 (1972) (internal quotation marks and citation omitted). The ultimate purpose of the doctrine, as with other equitable principles such as contribution, is to prevent unjust enrichment.

Erie Ins. Co. v. George , 681 N.E.2d 183, 186 (Ind. 1997) (some citations omitted).

[10] Indiana Code chapter 34-53-1 governs subrogation, but does not address subrogation claims on funds that are or were held by an attorney on behalf of the attorney's client. Another statute, however, suggests that a subrogation claim should be considered a lien. A lien is a claim that one person holds on another's property as a security for an indebtedness or charge. Beam v. Wausau Ins. Co. , 765 N.E.2d 524, 532 (Ind. 2002). Indiana Code section 34-51-2-19 provides

If a subrogation claim or other lien or claim that arose out of the payment of medical expenses or other benefits exists in respect to a claim for personal injuries or death and the claimant's recovery is diminished:
(1) by comparative fault; or
(2) by reason of the uncollectibility of the full value of the claim for personal injuries or death resulting from limited liability insurance or from any other cause;
the lien or claim shall be diminished in the same proportion as the claimant's recovery is diminished. The party holding the lien or claim shall bear a pro rata share of the claimant's attorney's fees and litigation expenses.

(Emphasis added.)

[11] Indiana Rule of Professional Conduct 1.15 provides that

(d) Upon receiving funds or other property in which the client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.
(e) When in the course of representation a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be kept separate by the lawyer until the dispute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute.

Comment 4 to the Rule provides that

Paragraph (e) also recognizes that third parties may have lawful claims against specific funds or other property in a lawyer's custody, such as a client's creditor who has a lien on funds recovered in a personal injury action. A lawyer may have a duty under applicable law to protect such third-party claims against wrongful interference by the client. In such cases, when the third-party claim is not frivolous under applicable law, the lawyer must refuse to surrender the property to the client until the claims are resolved. A lawyer should not unilaterally assume to arbitrate a dispute between the client and the third party, but, when there are substantial grounds for dispute as to the person entitled to the funds, the lawyer may file an action to have a court resolve the dispute.

(Emphasis added.)

[12] The facts of this case are not in dispute. Both parties agree that a subrogation claim needed to be paid to Farm Bureau, that they reached an impasse on June 9, 2015, regarding the amount of the claim that should be paid, and that following this date, neither party acted to resolve the issue until Farm Bureau filed its complaint against Holland on September 14, 2017. Yet the statute and the Rules of Professional Conduct indicate a professional duty for Holland to have retained the funds at issue until the claim was resolved because Farm Bureau had a lien on the funds. Indeed, our Supreme Court has stated that

[a]ttorneys who, during the course of a representation, receive settlements funds in which a third party has an undisputed legal interest are obligated promptly to deliver those funds to the third party. If entitlement to settlement funds is disputed, an attorney must hold the disputed funds in a separate account until the dispute is resolved.

In re Allen , 802 N.E.2d 922, 924 (Ind. 2004). In that case, our Supreme Court found that an attorney violated Rule 1.15 when he did not retain settlement funds to pay a chiropractor who had treated the attorney's client when the chiropractor had an undisputed claim to a portion of the settlement proceeds that was memorialized in an agreement with the attorney. Id. at 924-25. Our Supreme Court then found that another attorney violated Rule 1.15 when, at the attorney's client's instruction, the attorney paid a chiropractor less than the amount owed because the client thought she had been overcharged. The attorney sent the client the rest of the settlement proceeds. The Court held that the attorney was obligated to hold the funds in trust until the parties resolved the amount that the chiropractor was owed. Id. at 925.

[13] During oral argument, Holland explained that, in December 2015, when he had not heard from Farm Bureau for more than six months, he thought Farm Bureau had decided to waive its subrogation claim. Considering that, after negotiating the subrogation claim for months, Farm Bureau inexplicably ceased communication about the issue for more than two years, we understand Holland's assumption.

[14] Nonetheless, we are reminded of the old adage that what is good for the goose is good for the gander. If, for example, an attorney represents a client against an insurance company, the attorney is likely to file an attorney's lien with the insurance company and to expect the insurance company to comply with the lien. In this scenario, if the insurance company gives any proceeds directly to the client instead of the attorney in violation of the attorney's lien, then the attorney is likely to sue the insurance company. Likewise, if the insurance company files a medical lien with an attorney, and the attorney gives money to his client (who is the insured) that should be retained for the lien, then the insurance company can sue the attorney. Thus, we find that Holland had a duty to retain the funds until the parties resolved their dispute over the amount of the subrogation claim. That duty, however, is not interminable-the attorney need not hold the money forever.

[15] The outcome of this case, then, turns on determining the appropriate statute of limitations for Farm Bureau's attempt to collect its money. In other words, we must decide whether Farm Bureau waited too long. Holland argues that the appropriate statute of limitations is the two-year limit for tort claims. He offers two starting points for the time limit: November 20, 2012, which is when Farm Bureau issued medical payments, or June 9, 2015, which is when the parties reached their impasse and communication ceased between them. Farm Bureau counters that a six-year statute of limitations is appropriate, reasoning that a constructive trust was formed when Holland retained Client's money and that constructive trusts are subject to the six-year statute of limitations for fraud. Farm Bureau contends that the statute of limitations should begin on June 9, 2015, which was when it first became aware of Holland's refusal to repay the lien, and runs through June 9, 2021.

[16] We agree with Holland that a two-year statute of limitations is appropriate because breach of fiduciary duty is a tort claim for injury to personal property, and an action for injury to personal property must be commenced within two years after the cause of action accrues. I.C. § 34-11-2-4(a). Moreover, we are unpersuaded that a six-year statute of limitations should apply to this case. Although Farm Bureau argues this time period is appropriate because a constructive trust was imposed, a constructive trust can be imposed only through fraud. Kalwitz v. Estate of Kalwitz , 822 N.E.2d 274, 280 (Ind. Ct. App. 2005). For fraud to exist, there must be a material misrepresentation of past or existing fact. Kesling v. Hubler Nissan, Inc. , 997 N.E.2d 327, 335 (Ind. 2013). In its briefs and during oral argument, Farm Bureau was simply unable to identify any material misrepresentation made by Holland.

[17] We therefore apply a two-year statute of limitations. A cause of action in a tort claim accrues and the statute of limitations begins to run when the plaintiff knew or, in the exercise of ordinary diligence, could have discovered that an injury had been sustained as a result of the tortious act of another. First Farmers Bank & Tr. Co. v. Whorley , 891 N.E.2d 604, 610 (Ind. Ct. App. 2008). Farm Bureau acknowledges that it first became aware of Holland's refusal to repay the lien on June 9, 2015. Accordingly, we find that the statute of limitations began to run on June 9, 2015, and expired on June 9, 2017. Farm Bureau filed its complaint against Holland on September 14, 2017-more than three months too late. The trial court erred by granting summary judgment for Farm Bureau and by denying Holland's motion for summary judgment when Farm Bureau's claim was time-barred.

[18] The judgment of the trial court is reversed and remanded with instructions to enter judgment in favor of Holland.

Vaidik, C.J., and Brown, J., concur.

      We heard oral argument in Indianapolis on August 7, 2018. We thank counsel for their informative oral advocacy.

      At the trial court level, Farm Bureau moved to strike a certain paragraph from an affidavit that Holland submitted; the trial court granted that motion. On appeal, Holland argues that the trial court erred by granting this motion. Because of the disposition of this case, we find it unnecessary to address this issue.
      Then, during the appeal, Farm Bureau moved to strike a section of Holland's brief, arguing that because Holland had not raised a particular issue to the trial court, he could not raise it on appeal. Because of the disposition of this case, we find that the issue raised in this motion to strike has become moot. Therefore, by separate order, we deny the motion to strike as moot.

      Ind. Code § 34-11-2-4(a).

      I.C. § 34-11-2-7(4).


author: Vaidik, Chief Judge.

text:
    Maurice JOHNSON, Appellant-Plaintiff, v. BLUE CHIP CASINO, LLC, d/b/a Blue Chip Casino Hotel Spa, Appellee-Defendant
    Court of Appeals Case No. 18A-SC-788
    Court of Appeals of Indiana.
    Filed August 29, 2018
    Attorney for Appellant: Candace C. Williams, Tolbert & Tolbert, LLC, Gary, Indiana
    Attorneys for Appellee: Charles C. Hoppe, Jr., Roland Clark, Knight Hoppe Kurnik & Knight, Ltd., Schererville, Indiana
   Vaidik, Chief Judge.

Case Summary

[1] While Maurice Johnson was a guest at Blue Chip Casino Hotel Spa in Michigan City, he woke up to discover bed-bug bites on his right arm. Johnson brought a small-claims action against Blue Chip Casino, LLC, and the court entered judgment in favor of Blue Chip. Johnson now appeals, arguing that the doctrine of res ipsa loquitur applies to this case. Because Johnson has failed to prove that the presence of bed bugs in his hotel room more probably resulted from Blue Chip's negligence as opposed to another cause, we affirm the small-claims court's judgment in favor of Blue Chip.

Facts and Procedural History

[2] Johnson and his wife checked into Room 1253 at Blue Chip on January 1, 2017. Because the room had two full beds (instead of a king bed as they had requested), Johnson and his wife slept in separate beds. When Johnson and his wife pulled down the sheets as they were going to bed, they did not see any bed bugs in their respective beds. But when Johnson woke up the next morning, he noticed bites on his arm and then saw one live bed bug on his pillow. He pulled down the sheets and saw two shell casings from dead bed bugs. Johnson's wife took photos. Ex. 1. Johnson called guest services, and a supervisor came to their room, put the live bed bug in a jar, and had Johnson's and his wife's belongings "hot boxed" to kill any other bed bugs. Tr. p. 19. After checking out of the hotel, Johnson went to the emergency room, where he was treated for bed-bug bites and given an anti-itch prescription.

[3] In October 2017, Johnson filed a notice of claim in small-claims court in LaPorte County alleging that "[a]s a result of his stay, [he] received bed bug bites" and "incurred medical expenses and suffered emotional distress due to [Blue Chip's] negligence and breach of their duty of care." Appellant's App. Vol. II p. 9. At trial, Blue Chip's Safety Loss Prevention Manager, Rosella Luna, testified that because bed bugs are found in "hotels" and "a lot of other places," Blue Chip has policies and procedures for inspecting and treating hotel rooms for them. Tr. p. 44. Luna explained that new hires undergo training on how to look for bed bugs and that all housekeepers and supervisors undergo annual training as well. Luna said that Blue Chip's hotel rooms are cleaned and inspected daily (assuming they are rented out) and that the inspections include looking for evidence of bed bugs. Specifically, when housekeepers strip the beds, they look at the mattresses "to see if there is any evidence" of bed bugs. Id. at 42. Housekeepers also look for evidence of bed bugs in "the nooks and crannies" of the rooms, including furniture and bedding. Id. If a bed bug is found during a room inspection, that room as well as the surrounding rooms are taken out of service. A professional pest-control company then inspects the rooms and, if necessary, treats them. The treated rooms are held out of service until the pest-control company certifies that they're clean and safe to rent.

[4] Luna also testified that about two months before Johnson's January 2017 stay, on November 4, 2016, Blue Chip received a complaint about bed bugs in the same room, Room 1253. At that time, Terminix "inspected and treated the room and held [it] out of service until ... November 11, 201[6]." Id. at 35. Luna testified that she did not know if that guest brought the bed bugs into the hotel room, because "I can't tell you if people bring them in or not." Id. at 43. From November 11, 2016, until January 2, 2017, Blue Chip did not receive any other complaints about bed bugs in Room 1253 even though the room was rented during that time. Id. at 35.

[5] Following trial, the small-claims court entered findings and judgment in favor of Blue Chip. The court acknowledged that Johnson seemed to argue that "the existence of a bed bug is Res Ipsa Loquitur on the part of an inn keeper"; however, it found no merit to this argument. Appellant's App. Vol. II p. 8.

[6] Johnson now appeals.

Discussion and Decision

[7] The small-claims court determined that Johnson failed to meet his burden of proof regarding his claim against Blue Chip. Because the small-claims court's decision was not in Johnson's favor, he is appealing from a negative judgment. On appeal, we will not reverse a negative judgment unless it is contrary to law. LTL Truck Serv., LLC v. Safeguard, Inc., 817 N.E.2d 664, 667 (Ind. Ct. App. 2004). To determine whether a judgment is contrary to law, we consider the evidence in the light most favorable to the appellee, together with all the reasonable inferences to be drawn therefrom. Id. A judgment will be reversed only if the evidence leads to but one conclusion and the trial court reached the opposite conclusion. Id.

[8] Johnson argues that the doctrine of res ipsa loquitur applies to this case. Res ipsa loquitur is translated from Latin as "the thing speaks for itself." Gary Cmty. Sch. Corp. v. Lardydell , 8 N.E.3d 241, 247 (Ind. Ct. App. 2014), trans. denied . It is a rule of evidence that permits an inference of negligence to be drawn based upon the surrounding facts and circumstances of the injury. Rector v. Oliver , 809 N.E.2d 887, 889 (Ind. Ct. App. 2004), trans. denied ; see also Cergnul v. Heritage Inn of Ind., Inc. , 785 N.E.2d 328, 331 (Ind. Ct. App. 2003) ("[R]es ipsa loquitur permits an assumption that in some situations an occurrence is so unusual that, absent a reasonable justification or explanation, those persons in control of the situation should be held responsible." (emphasis added) ), reh'g denied , trans. denied . To create an inference of negligence, a plaintiff must establish that (1) the circumstances under which the injury occurred were under the management or exclusive control of the defendant and (2) the occurrence is of the type that does not ordinarily happen if those who have the management and control exercise proper care. Rector , 809 N.E.2d at 890. In determining whether the doctrine applies, the question is whether the incident more probably resulted from the defendant's negligence as opposed to another cause. Id. A plaintiff may rely upon common sense and experience or expert testimony to prove that the incident more probably resulted from negligence. Cleary v. Manning , 884 N.E.2d 335, 338 (Ind. Ct. App. 2008).

[9] Even assuming that Blue Chip maintained exclusive control over Room 1253 once Johnson and his wife checked in, Johnson has failed to prove that the presence of bed bugs in his hotel room on January 1 or 2, 2017, more probably resulted from Blue Chip's negligence as opposed to another cause. Bed bugs are small bugs that "hide during the day in places such as seams of mattresses, box springs, bed frames, headboards, dresser tables, inside cracks and crevices, behind wallpaper, or any other clutter or objects around a bed." Centers for Disease Control & Prevention, Bed Bugs FAQs , https://www.cdc.gov/parasites/bedbugs/faqs.html. Because bed bugs are a problem for hotels, Blue Chip developed policies and procedures for inspecting and treating hotel rooms for them. Luna testified that housekeepers are trained on bed bugs and look for evidence of bed bugs each time a room is cleaned, including stripping the beds to look at the mattresses and looking in "the nooks and crannies" of the rooms.

[10] Johnson argues, however, that "bed bugs and bed bug shells are not usually found in hotel beds unless the hotel's cleaning procedures f[a]ll below the reasonable standard." Appellant's Br. p. 11. His argument assumes that he would not have woken up to bed-bug bites if the housekeepers had done a better job cleaning and/or inspecting his room. But because of the hidden nature of bed bugs, it is entirely possible that a more thorough cleaning and inspection would not have discovered or eliminated the bed bugs. Johnson has thus failed to prove that the presence of bed bugs in his hotel room on January 1 or 2, 2017, more probably resulted from Blue Chip's negligence as opposed to another cause. See Cergnul , 785 N.E.2d at 332 (concluding that the plaintiff failed to satisfy the requirements of the res ipsa loquitur doctrine: "it is axiomatic that stair railings can become loose and fall through no negligence on the part of a landowner. For instance, a screw behind the wall could have fractured or another guest could have vandalized the railing just before Cergnul used it. Moreover, the evidence showed that neither the Super 8's manager nor any of the hotel employees experienced any difficulties with the railing prior to Cergnul's fall.").

[11] Johnson argues that even if the res ipsa loquitur doctrine does not apply, Blue Chip is liable under premises liability. As a hotel guest, Johnson was an invitee of Blue Chip. See Holiday Hosp. Franchising, Inc. v. AMCO Ins. Co. , 983 N.E.2d 574, 580 n.8 (Ind. 2013). Under Indiana premises-liability law, the owner or possessor of land owes the highest duty of care to its invitees: the duty to exercise reasonable care for their protection while they are on the premises. Roumbos v. Vazanellis , 95 N.E.3d 63, 66 (Ind. 2018). Indiana has adopted the Restatement (Second) of Torts section 343, which provides:

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.

Id. (citing Restatement § 343 ). An invitor is not the insurer of the invitee's safety, and before liability may be imposed on the invitor, it must have actual or constructive knowledge of the danger. Schulz v. Kroger Co. , 963 N.E.2d 1141, 1144 (Ind. Ct. App. 2012). Constructive knowledge can be found when a condition has existed for such a length of time and under such circumstances that it would have been discovered in time to have prevented injury if the invitor had used ordinary care. Id.

[12] Here, the small-claims court found that Johnson failed to prove that Blue Chip had either actual or constructive knowledge that bed bugs were present in Room 1253 on January 1 or January 2, 2017, Appellant's App. Vol. II p. 8, and the record supports this finding. According to Luna, Blue Chip did not have actual knowledge that there were bed bugs in Room 1253 on January 1 or 2 until Johnson called guest services to report them.

[13] Regarding whether Blue Chip had constructive knowledge, the record reflects that Blue Chip has policies and procedures for inspecting and treating hotel rooms for bed bugs. That is, Blue Chip's hotel rooms are cleaned and inspected daily, which includes looking for evidence of bed bugs on mattresses and in "the nooks and crannies" of the rooms. If a bed bug is found during an inspection, that room as well as the neighboring rooms are taken out of service. A professional pest-control company is called to inspect and, if necessary, treat the rooms. The treated rooms are held out of service until the pest-control company certifies that they're clean and safe to rent.

[14] The record also reflects that not only did Blue Chip have bed-bug policies and procedures in place in January 2017, but Blue Chip followed them as well. That is, about two months before Johnson checked into Room 1253 at Blue Chip, on November 4, 2016, bed bugs were found in the same room. At that time, Terminix "inspected and treated the room and held [it] out of service until ... November 11, 201[6]." Tr. p. 35. From November 11, 2016, until January 2, 2017, Blue Chip did not receive any other complaints of bed bugs in Room 1253 even though the room was rented during that time. Id. Accordingly, the small-claims court did not err in determining that Johnson failed to prove that Blue Chip had actual or constructive knowledge that bed bugs were present in Room 1253 on January 1 or 2, 2017. We therefore affirm the small-claims court's judgment in favor of Blue Chip.

[15] Affirmed.

Riley, J., and Kirsch, J., concur.