Opinion
24A-CT-850
12-18-2024
Deborah Tinsley, Appellant-Plaintiff v. Somerset Lakes Apartments, LLC, Appellee-Defendant
Attorney for Appellant Phyllis J. Garrison Noblesville, Indiana Attorneys for Appellee Brett T. Clayton Katherine M. Haire Reminger Co., L.P.A. Indianapolis, 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Marion Superior Court The Honorable James A. Joven, Judge Trial Court Cause No. 49D13-2004-CT-13124
Attorney for Appellant Phyllis J. Garrison Noblesville, Indiana
Attorneys for Appellee Brett T. Clayton Katherine M. Haire Reminger Co., L.P.A. Indianapolis, Indiana
MEMORANDUM DECISION
MAY, JUDGE
[¶1] Deborah Tinsley appeals from the trial court's order granting summary judgment to Somerset Lakes Apartments, LLC ("Somerset"). Tinsley presents three issues for our review, which we consolidate, revise, and restate as whether Tinsley's designated evidence created a genuine issue of material fact regarding whether Somerset was negligent in its maintenance and repair of her apartment. We reverse and remand.
Facts and Procedural History
[¶2] On March 1, 2016, Tinsley moved into a unit in the Somerset apartment complex in Indianapolis. At some point, water leaks developed in Tinsley's apartment. Tinsley did not notice the leaks, nor did she smell mold in her apartment, but after she "started to get sick," her son commented: "'Mom, it smells like mold in here.'" (Appellant's App. Vol. 2 at 202.) On April 8, 2018, Tinsley went to the hospital complaining of shortness of breath and a cough. She returned to the hospital two days later with the same symptoms and received nebulizer treatments.
[¶3] After Tinsley returned from the second hospital visit, she told the property manager of Somerset about her symptoms. Sometime thereafter, Tinsley's downstairs neighbor complained to Tinsley about a leak from Tinsley's apartment and water damage. Tinsley reported the issue to Somerset. Eventually, Tinsley's downstairs neighbor's ceiling "caved in[.]" (Id. at 203.) A Somerset maintenance worker came to Tinsley's apartment to investigate the source of the leaks. When he pulled back some of Tinsley's carpet and moved her china cabinet, Tinsley noticed mold growth that had been concealed underneath the carpet and behind the cabinet. Tinsley also noticed black mold around the air vents and in her apartment's bathrooms.
[¶4] Tinsley was again hospitalized with respiratory issues from May 18 through May 20, 2018. Tinsley continued to complain to Somerset's management about her respiratory issues and the mold, but they "just gave [her] the runaround." (Id. at 205.) Tinsley's son arranged for Service Master, a company that performs water damage restoration services, to inspect Tinsley's apartment in June 2018. After inspecting the apartment, Service Master reported that it found mold on "the insulation wrap around the Hvac system" and on "the drywall in the over head in storage room where Hvac system is placed[.]" (Appellant's App. Vol. 3 at 13) (errors in original). Service Master also found mold on the HVAC registers and in the master bathroom. After Tinsley showed Somerset the report from Service Master, Somerset maintenance workers spot cleaned her carpet, replaced her air conditioner, removed mold from her furnace, and cleaned her bathroom.
[¶5] On July 2, 2018, April Nelson, an industrial hygienist employed by Micro Air Inc., collected air samples from both inside and outside of Tinsley's apartment. The testing indicated the total airborne mold spore level inside the apartment was 159 spores per cubic meter and the total mold spore level outside the apartment was 9,759 spores per cubic meter. Micro Air did not make any remediation recommendations because a spore level below 2,000 spores per cubic meter generally indicates clean conditions.
[¶6] Tinsley continued to feel ill, and she called Marion County Public Health Department ("MCPHD"). The MCPHD examined Tinsley's apartment on August 21, 2018, and sent Somerset a letter noting several violations of Chapter 10 of the Code of the Health and Hospital Corporation of Marion County, Indiana. The violations included moldy vent covers in the dining room and second bedroom and moldy caulk and/or grout in the bathrooms. It also found deteriorated flooring in the hallway. The MCPHD warned Somerset that it could be fined for the violations if they were not corrected by September 20, 2018.
[¶7] Shortly after the MCPHD examined Tinsley's apartment, she moved out, but she continued to experience respiratory issues. Tinsley visited the emergency room on October 4, 2018, complaining she developed a cough, shortness of breath, and wheezing while unpacking clothes from the Somerset apartment. Tinsley's discharge diagnosis was "[a]cute asthma exacerbation secondary to trigger and packing her clothes with possible mold exposure." (Id. at 25) (error in original). The doctor recommended to Tinsley's family that she dry-clean her clothes from the Somerset apartment and avoid further triggers from items that were in the Somerset apartment. On November 14, 2018, Tinsley went to the emergency room again complaining of shortness of breath. The emergency room physician diagnosed her with "[a]cute asthma exacerbation secondary to possible recurrent mold exposure." (Id. at 27.)
[¶8] On April 3, 2020, Tinsley filed suit against Somerset alleging Somerset failed to maintain her apartment "in a safe, clean and livable condition and to comply with all health and building codes." (Appellee's App. Vol. 2 at 12.) She alleged Somerset failed to correct the mold problem in her apartment or move her to a mold-free apartment and she suffered injuries because of the mold exposure.
[¶9] On November 10, 2023, Somerset filed a motion for summary judgment. Somerset contended it was entitled to summary judgment because it did not have notice about the mold condition before Tinsley's hospitalization and Tinsley could provide "no admissible expert testimony to support her complex claims that she was injured as a result of mold exposure." (Appellant's App. Vol. 2 at 21.) In support of its motion, Somerset designated affidavits by Nelson and Dr. Eric Gershwin, a professor of medicine at the University of California-Davis. Dr. Gershwin averred that after reviewing Tinsley's medical records, Micro Air's air quality testing report, Tinsley's deposition testimony, and the parties' discovery responses, he concluded that "it is [his] opinion that Ms. Tinsley's alleged injuries and damages were not caused by mold exposure." (Id. at 39.) He opined that Tinsley's "respiratory problems arose independently and were not caused by her alleged exposure to mold spores in the indoor environment of her apartment at Somerset Lakes." (Id. at 40.) Dr. Gershwin further explained:
I am aware that Ms. Tinsley reported [sic] self-reported to treating physicians that she was exposed to mold and that she suffered respiratory difficulties, and that these physicians have reported and repeated the history that Ms. Tinsley gave to them.
While it is standard practice to take a medical history from a patient, statements that Ms. Tinsley suffered from adverse respiratory reactions caused by mold appear based on Ms. Tinsley's lay opinion alone. Such statements lack scientific support and are not reliable or diagnostic. Specifically, no physician explored what species were present inside of her apartment to determine if any purported toxigenic species or harmful levels of mold spores were present. No physician sought to examine or explain how Ms. Tinsley could have suffered an adverse reaction to mold levels inside of her apartment, when the mold levels she would have been exposed [to] in the outdoor environment were much higher. Moreover, no physician has ever recovered mold from any of Ms. Tinsley's bodily secretions. Thus, the medical records lack any scientific basis to support a conclusion that Ms. Tinsley's medical condition was caused [by] mold exposure.(Id.)
[¶10] Tinsley filed her response in opposition to Somerset's motion for summary judgment on January 8, 2024. She argued Somerset knew about the risk for mold when it learned about the leak in Tinsley's apartment, and "[o]nce Somerset was notified that Mrs. Tinsley was ill because of mold discovered in her apartment, it became apparent that the continuing presence of mold would present a foreseeable danger to their tenant." (Id. at 192.) Moreover, Tinsley contended two of her treating physicians opined that her illness likely resulted from mold exposure.
[¶11] The trial court heard argument on Somerset's motion for summary judgment on February 22, 2024, and the trial court granted Somerset's motion on March 22, 2024. The trial court explained: "Tinsley's failure to provide expert testimony to contravene Dr. Gershwin leads the Court to conclude that there is no disputed material fact regarding the cause of Tinsley's injuries....Thus, Tinsley fails to prove the causation element of her toxic tort claim." (Id. at 20.)
A transcript of this hearing is not included in the record on appeal.
Discussion and Decision
[¶12] Tinsley asserts the trial court erred in granting Somerset's summary judgment motion. Our standard of review following a trial court's order on a motion for summary judgment is well-settled:
When we review a grant or denial of a motion for summary judgment, our standard of review is the same as it is for the trial court. The moving party must show there are no genuine issues of material fact and [it] is entitled to judgment as a matter of law. If the moving party carries its burden, then the nonmoving party must present evidence establishing the existence of a genuine issue of material fact. In deciding whether summary judgment is proper, we consider only the evidence the parties specifically designated to the trial court. We construe all factual inferences in favor of the non-moving party and resolve all doubts regarding the existence of a material issue against the moving party.Asklar v. Gilb, 9 N.E.3d 165, 167 (Ind. 2014) (internal citations omitted). "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[.]" Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009).
Summary judgment is not a summary trial and it is not appropriate merely because the nonmovant appears unlikely to prevail at trial. Indiana consciously errs on the side of letting marginal cases proceed to trial on the merits, rather than risk short-circuiting meritorious claims. To succeed on summary judgment in an Indiana state court, the movant must affirmatively negate its opponent's claim, which is a more onerous burden than that imposed by the Federal Rules of Civil Procedure.Pfadt v. Wheels Assured Delivery Sys., Inc., 200 N.E.3d 961, 971 (Ind.Ct.App. 2022) (internal brackets, citations, and quotation marks omitted), reh'g denied. When reviewing an order on a motion for summary judgment, "[f]indings of fact and conclusions of law entered by the trial court aid our review, but they do not bind us." Parke v. Vishwam, 236 N.E.3d 1150, 1155 (Ind.Ct.App. 2024).
[¶13] Tinsley argues Somerset negligently failed to remediate a mold problem in her apartment. A plaintiff must prove three elements to succeed on a negligence claim: "(1) the defendant owed a duty of care to the plaintiff; (2) the defendant breached that duty; and (3) the breach proximately caused a compensable injury." Id. at 1156 (internal quotation marks omitted). A landlord generally does not have a duty to protect a tenant from injury due to defective conditions on the property after possession and control of the property have been surrendered to the tenant. Zubrenic v. Dunes Valley Mobile Home Park, Inc., 797 N.E.2d 802, 806 (Ind.Ct.App. 2003), trans. denied. However, that general rule is not without exceptions. "One exception to the general rule is that a tenant may recover for injuries stemming from defective premises if the landlord expressly agrees to repair the defect and is negligent in doing so." Id. In addition, the landlord "has a duty to maintain in safe condition the parts of the building used in common by the tenants and over which the landlord retains control." Id.
[¶14] Tinsley contends the trial court erred when it found that Somerset had successfully negated the causation element of her negligence claim. "[T]o be considered a proximate cause, the negligent act must have set in motion a chain of circumstances that in natural and continuous sequence lead to the resulting injury. Proximate cause requires, at a minimum, that the harm would not have occurred but for the defendant's conduct." Carey v. Ind. Physical Therapy, Inc., 926 N.E.2d 1126, 1129 (Ind.Ct.App. 2010) (internal citation omitted), trans. denied. "While proximate cause is generally a question of fact, it becomes a question of law where only a single conclusion can be drawn from the designated facts." Id. Somerset asserts that the only conclusion that can be drawn from the designated evidence is that the mold in Tinsley's apartment did not cause her respiratory issues. Somerset contends "Tinsley failed to meet her burden," because she "failed to refute [Dr. Gershwin's] opinion with expert or admissible evidence." (Appellee's Br. at 11.) However, as Tinsley notes, she
had mold in her apartment. When she was away from the apartment her symptoms receded but returned when she was exposed to the apartment, her clothes or her household items. A
jury may well see the cause and effect of this scenario and not need expert testimony to reach a conclusion.(Appellant's Br. at 8.)
[¶15] Tinsley likens her case to Martin v. Ramos, 120 N.E.3d 244 (Ind.Ct.App. 2019). In Martin, Ramos's vehicle rear-ended Martin's vehicle. Id. at 246-47. Martin went to the hospital after the accident and complained of neck, arm, and shoulder pain. Id. at 247. While Martin experienced neck pain before the accident, his neck pain increased after the accident, and he sought ongoing medical treatment in the months after the accident for neck and back pain. Id. The trial court held a bench trial and found Ramos to be 100% at fault for the accident, but the trial court did not award Martin any damages because the trial court found Martin did not prove causation between the accident and his increased neck and back pain. Id. at 247-48. The trial court concluded that medical expert testimony was necessary to establish causation and Martin's testimony and medical records were insufficient to establish causation. Id. at 249. However, we reversed the trial court because "[i]f a layperson can readily understand the causation, an expert opinion is not necessary." Id. "'Causation may be proven by circumstantial evidence if the evidence has sufficient probative force to constitute a basis for a legal inference rather than mere speculation.'" Id. at 251 (quoting Smith v. Beaty, 639 N.E.2d 1029, 1034 (Ind.Ct.App. 1994)). Consequently, we held that the trial court erred in concluding as a matter of law that Martin failed to prove causation because sufficient circumstantial evidence existed for the factfinder to determine the issues of causation and damages given that "Martin testified and presented documentation regarding injury contemporaneous with the collision for which Ramos was at fault." Id. at 252.
[¶16] Like in Martin, the temporal proximity between Tinsley's repeated exposures to mold in her Somerset apartment and the onset of her respiratory symptoms raises a reasonable inference that the mold caused her respiratory issues. While the affidavits of Dr. Gershwin and Nelson challenge the wisdom of drawing such an inference, they do not affirmatively disprove it. A jury could conclude from Tinsley's testimony, the documented history of mold in her Somerset apartment, and her repeated hospital visits that the mold in her apartment caused her respiratory issues. Therefore, summary judgment on the issue of causation is inappropriate because a genuine issue of material fact exists. See, e.g., Sorrells v. Reid-Renner, 49 N.E.3d 647, 652 (Ind.Ct.App. 2016) (holding summary judgment precluded by genuine issue of material fact regarding whether doctor's failure to communicate blood test results to the patient proximately caused patient's injuries).
Somerset asserts on appeal that the medical records Tinsley designated in opposition to Somerset's motion for summary judgment were not properly authenticated. "However, Indiana adheres to the rule that in order to be admissible at a summary judgment hearing, evidence need not necessarily be in a form that would be admissible at trial, so long as the substance of the evidence would be admissible." Harrison v. Veolia Water Indianapolis, 929 N.E.2d 247, 253 n.6 (Ind.Ct.App. 2010), trans. denied. The medical records Somerset challenges as improperly authenticated were reviewed by Dr. Gershwin in the preparation of his affidavit and Tinsley testified in her deposition regarding her medical history and multiple hospital visits due to respiratory issues. Therefore, we are confident the substance of those records would be admissible at trial.
[¶17] Somerset further contends it "lacked actual or constructive notice of the presence of any dangerous mold, and therefore did not have an opportunity to remediate, prior to Tinsley sustaining the alleged injury." (Appellee's Br. at 11.) However, while Tinsley was first hospitalized with respiratory issues before the water leak in her apartment was discovered, she testified that Somerset's own maintenance workers found the mold while repairing the water leak, and she stated that she repeatedly brought the mold and her respiratory symptoms to Somerset's attention but Somerset either ignored her complaints or failed to adequately address them. Consequently, we cannot hold as a matter of law that Somerset lacked actual or constructive notice of the mold in Tinsley's apartment before some of Tinsley's repeated hospital visits for respiratory issues after being exposed to it. See, e.g., Force v. New China Hy Buffet LLC, 217 N.E.3d 1275, 1279 (Ind.Ct.App. 2023) (holding genuine issue of material fact regarding whether restaurant had notice of hazardous condition precluded summary judgment). Therefore, we reverse the trial court's order granting summary judgment in favor of Somerset because multiple genuine issues of material fact remain, and we remand for further proceedings. See, e.g., id. (reversing grant of summary judgment and remanding for further proceedings).
Conclusion
[¶18] Genuine issues of material fact remain regarding whether Somerset adequately responded to Tinsley's repeated complaints about mold in her apartment and whether the mold caused her respiratory issues. Therefore, summary judgment in favor of Somerset was not appropriate. Accordingly, we reverse the trial court's judgment and remand for further proceedings.
[¶19] Reversed and remanded.
Brown, J., and Pyle, J., concur.