Opinion
23A-CT-3099
06-06-2024
Wentao Bao, Appellant-Defendant v. Patricia Sterzick, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Gary L. Griner Mishawaka, Indiana ATTORNEY FOR APPELLEE James P. Barth Pfeifer Morgan &Stesiak South Bend, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the St. Joseph Superior Court The Honorable Jamie C. Woods, Judge Trial Court Cause No. 71D06-2010-CT-363
ATTORNEY FOR APPELLANT
Gary L. Griner Mishawaka, Indiana
ATTORNEY FOR APPELLEE
James P. Barth Pfeifer Morgan &Stesiak South Bend, Indiana
MEMORANDUM DECISION
RILEY, JUDGE
STATEMENT OF THE CASE
[¶1] Appellant-Defendant, Wentao Bao (Bao), appeals the trial court's findings of fact and conclusions thereon, concluding that Bao breached his duty of reasonable care to Appellee-Plaintiff, Patricia Sterzick (Sterzick), and awarding damages of $420,000 in favor of Sterzick.
[¶2] We affirm.
ISSUES
[¶3] Bao presents this court with three issues on appeal, which we restate as:
(1) Whether the trial court abused its discretion when it concluded that Bao acted with intentional disregard for the safety of his tenants;
(2) Whether the trial court properly applied the Comparative Fault Act; and
(3) Whether the damage award was excessive and unsupported by the evidence.
FACTS AND PROCEDURAL HISTORY
[¶4] On the evening of November 3, 2019, seventy-three-year-old Sterzick assisted her family members with moving into a rental property owned by Bao. While at the residence, Sterzick stepped on an open register vent, which had been covered by carpet and which caused her right foot to become caught. Sterzick lost her balance and suffered fractures in her right femur and knee. Bao was aware of necessary repairs to the residence, including the replacement of the registers, prior to Sterzick's family members moving in.
[¶5] Sterzick's injuries significantly impaired her ability to walk, perform daily activities, maintain her independence, and interact with her grandchildren. Sterzick received surgery to repair the fractures and required subsequent physical therapy and on-going rehabilitative measures to address the severity of her injuries and facilitate her recovery. The physical limitations and chronic pain have caused immense emotional distress and have impacted Sterzick's mental health.
[¶6] On October 1, 2020, Sterzick filed a Complaint, asserting a premise liability claim against Bao. On August 23, 2021, Sterzick served Bao with interrogatories and a request for production. On January 19, 2022, Sterzick filed a motion to compel the discovery, which was granted by the trial court on March 8, 2022. On October 12, 2023, Sterzick filed a motion to establish admissions, seeking to have the requests for admission deemed admitted for Bao's failure to answer, which was granted by the trial court. As a result, Bao admitted to the following:
2. The treatment provided to [Sterzick] from each healthcare provider was reasonable and necessary for the injuries [Sterzick] received on 11/3/2019 at [Bao's] property.
3. [Bao] had knowledge of the dangerous condition on the property, specifically the open register was covered by carpet, but
failed to take adequate measures to address or warn invitees of the danger.
4. [Bao] owed [Sterzick] a duty of care to maintain the property in a safe condition.
5. [Bao] breached that duty of care by failing to maintain the property in a safe condition.
6. [Bao's] knowledge of the dangerous condition on the property was such that a reasonable person in [Bao's] position would have taken steps to address or warn invitees of the danger.
* * *
12. [ ] the bills contained in documents 0001-1347 are true, accurate and reasonable for purposes of medical diagnosis or treatment of [Sterzick].(Appellee's App. Vol. II, pp. 7-8).
[¶7] On November 14, 2023, the trial court conducted a bench trial. On December 5, 2023, the trial court issued its findings of fact and conclusions thereon, concluding, in pertinent part, that:
[Bao], as the owner of the rental property, owed a duty of reasonable care to [Sterzick], which he breached by covering an open air return register with carpet and failing to warn about the hidden hazard. His actions directly contributed to the dangerous condition that caused [Sterzick's] fall and subsequent injuries. [Bao's] intentional disregard for the safety of [his] tenants constitutes wanton and reckless conduct.
Considering the nature and extent of [Sterzick's] injuries, past and future medical needs, and the permanent effect on her ability to function, judgment of $420,832.00 is entered to compensate for the injuries, harms, and losses suffered as result of [Bao's] conduct. This amount reflects the magnitude of the impact on [Sterzick's] life and provides just compensation for her pain, suffering, and diminished quality of life.(Appellant's App. Vol. II, pp. 125-26).
[¶8] Bao now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[¶9] Because the trial court entered findings of fact and conclusions of law following a hearing, we apply a two-tiered standard of review. We first determine whether the evidence supports the findings; we then determine whether the findings support the judgment. Johnson v. Shanehsaz, 152 N.E.3d 7, 16 (Ind.Ct.App. 2020). In deference to the trial court's proximity to the issues, we disturb the judgment only when there is no evidence supporting the findings or the findings fail to support the judgment. Id. We do not reweigh the evidence, and we consider only the evidence favorable to the trial court's judgment. Id. We also will not reassess witness credibility. Id. The party appealing the trial court's judgment must establish that the findings are clearly erroneous. Id. Findings are clearly erroneous when a review of the record leaves us firmly convinced that a mistake has been made. Id. We do not defer to conclusions of law, which are evaluated de novo. Id.
II. Premise Liability
[¶10] Bao first contends that the trial court erred in finding that his intentional disregard for the safety of the tenants constituted wanton and reckless disregard.
[¶11] It is well settled in Indiana that a landowner has a duty to an invitee to "exercise reasonable care for the invitee's protection while the invitee is on the premises." Rogers v. Martin, 63 N.E.3d 316, 320 (Ind. 2016). To fix the parameters of this duty as it relates to "dangerous conditions on the land," we have adopted section 343 of the Restatement (Second) of Torts. Pennington v. Memorial Hospital of South Bend, Inc., 223 N.E.3d 1086, 1097 (Ind. 2024). The Restatement declares:
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 1.
Restatement (Second) of Torts § 343 (Am. L. Inst. 1965).
[¶12] The duty to exercise reasonable care extends to "an unreasonable risk of harm" that the defendant "should realize" exists and "should expect" invitees to overlook or fail to "protect themselves against." Pennington, 223 N.E.3d at 1097; see also Rogers, 63 N.E.3d at 324 (explaining that the "foreseeability component within the landowner-invitee duty is already explicit" in Restatement section 343).
[¶13] Here, Bao's own testimony and admissions establish that he removed the air vent grate, covered the hole with the carpet, left the property, and allowed the renters to move in. Uncontested by Bao, the trial court found that "Bao failed to inform [Sterzick] and her granddaughter about the necessary repairs to the residence, including the replacement of the registers, prior to their move-in date. This failure to disclose crucial information directly contributed to the hazardous condition that caused Ms. Sterzick's injuries." (Appellant's App. Vol. II, p. 121).
[¶14] Although the trial court found Bao breached his duty of reasonable care "covering an open air return register with carpet and failing to warn about the hidden hazard[,]" the trial court also characterized Bao's actions as amounting to "intentional disregard for the safety of [his] tenants [which] constitutes wanton and reckless conduct." (Appellant's App. Vol. II, p. 125). It is this latter characterization that Bao now disputes.
[¶15] Our supreme court has described willful and wanton misconduct in terms of acts of commission and omission. Miner v. Southwest School Corporation, 755 N.E.2d 1110, 1113 (Ind.Ct.App. 2001). According to our supreme court, a willful and wanton act of commission is: "an intentional act done with the reckless disregard of the natural and probable consequence of injury to a known person under the circumstances known to the actor at the time." Id. (quoting Witham v. Norfolk &W. Ry. Co., 561 N.E.2d 484, 486 (Ind.1990)). Correspondingly, a willful and wanton omission is described as: "[a] failure to act when the actor has actual knowledge of the natural and probable consequence of injury and his opportunity to avoid the risk." Id. Whether the party has acted or failed to act, willful and wanton misconduct has "two elements: 1) the defendant must have knowledge of an impending danger or consciousness of a course of misconduct calculated to result in probable injury; and 2) the actor's conduct must have exhibited an indifference to the consequences of his own conduct." Id.
[¶16] Pointing to his own testimony, Bao argues that he had no expectation that Sterzick would enter the home that day, that Sterzick's explanation of what happened is inconsistent with the hole being covered with carpet, and that the air vents were an open and obvious hazard. However, the trial court received Bao's testimony during the proceedings and clearly rejected it as evidenced by the court's judgment. Boa's argument on appeal amounts to a request to reweigh the credibility of the witnesses and the evidence, which we decline. See Johnson, 152 N.E.3d at 16. Accordingly, we affirm the trial court's conclusion that Bao breached his duty of reasonable care.
III. Comparative Fault Act
[¶17] In a two-paragraph argument, Bao contends that the trial court erred when it failed to consider Sterzick's own fault as contributing to her injuries. "Under the Comparative Fault Act, liability is to be apportioned among persons whose fault caused or contributed to causing the loss in proportion to their percentages of 'fault' as found by the jury." Control Techniques, Inc. v. Johnson, 762 N.E.2d 104, 109 (Ind. 2002) (citing Ind. Code § 34-51-2-8; Cahoon v. Cummings, 734 N.E.2d 535, 541 (Ind.2000)). Under the Act, the jury apportions the total fault for an injury among the plaintiff(s), defendant(s), and any other person who is properly named a "nonparty." I.C. §§ 34-51-2-7 to -8. In the event the contributory fault of the plaintiff is greater than the fault of "all persons whose fault proximately contributed to the claimant's damages, Section 6 of the statute completely bars recovery." I.C. § 34-51-2-6.
[¶18] Bao's entire argument in attributing a portion of the fault to Sterzick rests on a perceived incongruity in Sterzick's testimony. Specifically, although Sterzick testified that it was daylight when she arrived at the rental property, Bao encourages us to disregard that testimony because the injury happened on November 3rd in the early evening, and with the lighting in the room not working, Bao posits that "[t]he room where she fell must have been dark." (Appellant's Br. p. 10). However, as with the previous issue, Bao's claim merely amounts to a request to reweigh Sterzick's credibility, which we cannot do. See Johnson, 152 N.E.3d at 16.
[¶19] IV. Excessive Damages
[¶20] As a final issue, Bao contends that the trial court's damage award of $420,832 was clearly erroneous and unsupported by the evidence. First, it should be noted that, prior to the hearing, Bao admitted that "[t]he treatment provided to [Sterzick] from each healthcare provider was reasonable and necessary for the injuries [Sterzick] received on 11/3/2019 at [Bao's] property," and that "[] the bills contained in documents 0001-1347 are true, accurate and reasonable for purposes of medical diagnosis or treatment of [Sterzick]." (Appellant's App. Vol. II, pp.7-8). These medical invoices amounted to $120,000, with the remainder of the damage award attributed to "the magnitude of the impact [of the injuries] on [Sterzick's] life and provides just compensation for her pain, suffering, and diminished quality of life." (Appellant's App. Vol. II, p. 126).
[¶21] Testimony presented at the hearing reflected that in the aftermath of the incident, Sterzick required immediate surgical intervention and hospitalization, which was followed by a prolonged period of ongoing medical treatment. These medical interventions resulted in considerable physical and emotional pain and suffering. Sterzick testified that her quality of life has been significantly diminished due to her physical pain and loss of mobility caused by her injuries, which in turn affected her ability to engage in physical activities and maintain her independence. Dr. Robert Grigori (Dr. Grigori), Sterzick's medical expert, evaluated Sterzick's medical records and testified to the reasonableness and necessity of her medical treatments, as well as the estimated future need for pain management injections and shoulder surgery. His professional opinion established the ongoing medical needs and validated the costs associated with her past and future treatments. Accordingly, as the evidence supports the trial court's findings, we affirm the trial court's damage award in favor of Sterzick.
CONCLUSION
[¶22] Based on the foregoing, we hold that the trial court did not err in finding that Bao acted with intentional disregard for the safety of his tenants; the trial court properly applied the Comparative Fault Act; and the damage award was supported by the evidence.
[¶23] Affirmed.
Felix, J. and Kenworthy, J. concur.