Rose v. Birch Tree Holdings, LLC et al

Filing 219

OPINION AND ORDER: The Court DENIES plaintiff's motion for partial summary judgment 176 . GRANTS in part and DENIES in part defendants' motions for summary judgment 168 , 171 , 173 , on the terms identified in this Opinion and Order. GRANTS plaintiff's motion to strike defendant Birch Tree's cross motion for summary judgment 210 . STRIKES defendant Birch Tree's cross motion for summary judgment 190 . GRANTS plaintiff's motion for leave to file reply exhi bit 211 . DENIES as moot plaintiff's motion for the court to not consider defendants' new arguments in their reply brief 216 and REFERS this case to Magistrate Judge John E. Martin for settlement proceedings. Should those proceedings be fruitless, a trial date andpretrial filing deadlines will be set under separate order. Signed by Senior Judge James T Moody on 8/25/2022. (mrm)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
GAYLIN ROSE,

)
)
Plaintiff,
)
)
v.
)
)
BIRCH TREE HOLDINGS, LLC, et al., )
)
Defendants.
)

No. 2:18 CV 197

OPINION and ORDER
This matter is before the court on the parties’ cross motions for summary
judgment and related motions. (DE ## 168, 171, 173, 176, 190, 210, 211, 216.) For the
reasons that follow, plaintiff’s motion is denied and defendants’ motions are granted in
part and denied in part.
I.

BACKGROUND1
On November 21, 2016, there was a fire in the apartment where plaintiff Gaylin

Rose lived with her four minor children. (DE # 170-5 at 13.) Rose survived the fire, but
all four of her children died. (Id.)
Rose leased the apartment from defendant Birch Tree Holdings, LLC (“Birch
Tree”). (DE # 170-1 at 2.) Defendants Joshua Ayres and Troy Helderman are the sole
members and co-managers of Birch Tree. (DE # 170-1 at 1.)

1

The following facts are undisputed for purposes of resolving the present
dispositive motions, unless otherwise noted.
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Rose’s lease began May 1, 2016, and she moved in sometime that same month.
(DE # 170-1 at 2; DE # 170-2 at 6.) Rose’s apartment had two bedrooms, one on the first
floor (where Rose slept) and one on the second floor (where her children slept). (DE #
170-1 at 2; DE # 170-5 at 15.) There was one smoke detector in the apartment, situated in
the hallway outside the second story bedroom. (DE # 170-1 at 2.) The parties dispute
whether this smoke detector had a battery when Rose moved into the apartment. Rose
has no memory of maintaining or testing the smoke detector in the apartment after she
moved in. (DE # 171-6 at 10-11.) It is undisputed that the apartment did not contain the
statutorily mandated number of smoke detectors. Investigators determined that the fire
was an incendiary (intentional) fire that possibly used ignitable liquids. (DE # 170-5 at
3.)
Defendants designated Todd Hetrick as an expert witness to provide his opinion
regarding Rose and her children’s window of opportunity to safely exit the apartment
during the fire. (DE # 170-5.) Hetrick opined, “it cannot be reliably concluded that Ms.
Rose would have had sufficient time to wake herself and her children and safely egress
from the structure in an intentionally set fire scenario even with a functional smoke
alarm in the kitchen or living room.” (DE # 170-5 at 3-4.) He based this opinion, in part,
on his estimate that the available safe egress time for the fire was between 60 and 200
seconds if ignitable liquids were used, and 110 to 250 seconds if ignitable liquids were
not used. (Id. at 4.) He estimated that, in the best case scenario, it would take between
110 and 250 seconds for an adult sleeping in the first floor bedroom to wake four

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children on the second floor and safely exit the apartment. (Id.) However, Hetrick
testified that he cannot reliably exclude the possibility that Rose and her children could
have safely exited the apartment had there been a working smoke detector. (DE # 17813 at 117.) He testified, “[w]hat I’ve concluded is that it is possible that the available
safety egress time was less than (sic) required safety egress time for the incendiary fire
at 103 East Columbia Street, especially if ignitable liquids were used in the fire, which
would make it far less likely to successfully escape from the fire environment.” (Id.)
Rose filed the present suit against defendants alleging that their negligence
caused her injuries and the deaths of her children. (DE ## 1, 42.) Each party has filed a
motion for summary judgment. The motions are fully briefed and are ripe for ruling.
II.

LEGAL STANDARD
Federal Rule of Civil Procedure 56 requires the entry of summary judgment, after

adequate time for discovery, against a party “who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). “A motion for summary judgment is a contention that the material facts are
undisputed and the movant is entitled to judgment as a matter of law. The party
pursuing the motion must make an initial showing that the agreed-upon facts support a
judgment in its favor.” Hotel 71 Mezz Lender LLC v. Nat’l Ret. Fund, 778 F.3d 593, 601 (7th
Cir. 2015) (internal citation omitted).
“[I]n ruling on a motion for summary judgment, the judge must view the

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evidence presented through the prism of the substantive evidentiary burden.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986). “Where . . . the movant is seeking
summary judgment on a claim as to which it bears the burden of proof, it must lay out
the elements of the claim, cite the facts which it believes satisfies these elements, and
demonstrate why the record is so one-sided as to rule out the prospect of a finding in
favor of the non-movant on the claim.” Id.; see also Reserve Supply Corp. v. Owens-Corning
Fiberglass Corp., 971 F.2d 37, 42 (7th Cir. 1992). “If the movant has failed to make this
initial showing, the court is obligated to deny the motion.” Hotel 71 Mezz Lender LLC,
778 F.3d at 601.
In responding to a motion for summary judgment, the non-moving party must
identify specific facts establishing that there is a genuine issue of fact for trial. Palmer v.
Marion County, 327 F.3d 588, 595 (7th Cir. 2003). In doing so, the non-moving party
cannot rest on the pleadings alone, but must present fresh proof in support of its
position. Anderson, 477 U.S. at 248; Donovan v. City of Milwaukee, 17 F.3d 944, 947 (7th
Cir. 1994). A dispute about a material fact is genuine only “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at
248. If no reasonable jury could find for the non-moving party, then there is no
“genuine” dispute. Scott v. Harris, 550 U.S. 372, 380 (2007).
The court’s role in deciding a summary judgment motion is not to evaluate the
truth of the matter, but instead to determine whether there is a genuine issue of triable
fact. Anderson, 477 U.S. at 249-50; Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th

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Cir. 1994). In assessing a summary judgment motion, the district court views the facts in
the light most favorable to, and draws all reasonable inferences in favor of, the
nonmoving party. See Anderson v. Donahoe, 699 F.3d 989, 994 (7th Cir. 2012); Delapaz v.
Richardson, 634 F.3d 895, 899 (7th Cir. 2011).
III.

DISCUSSION
Rose’s claim against defendants is for negligence. Because the children were

minors and had no dependents, Indiana Code § 34-23-2-1 governs Rose’s claims for
their alleged wrongful deaths. See Est. of Sears ex rel. Sears v. Griffin, 771 N.E.2d 1136,
1138 (Ind. 2002) (Indiana’s child wrongful death statute “allows parents or guardians to
obtain damages for the wrongful death of unmarried children who had no legal
dependents and were under twenty years of age (or under twenty-three and still in
school).”). To prevail on her negligence claim, Rose must show: “(1) a duty owed to the
plaintiff by the defendant; (2) a breach of that duty by allowing conduct to fall below
the applicable standard of care; and (3) compensable injury proximately caused by the
breach of duty.” Smith v. Walsh Constr. Co. II, LLC, 95 N.E.3d 78, 84 (Ind. Ct. App. 2018).
A.

Ayres and Helderman’s Duty to Rose

In this case, Ayres and Helderman argue that they are entitled to summary
judgment because Rose cannot establish that they owed her any duty of care. (DE # 169
at 12; DE # 174 at 10.) Rose does not claim that Ayres and Helderman owed her a
common law duty of care. Rather, she argues that they owed her a statutory duty,
pursuant to Indiana Code § 22-11-18-3.5(e), to provide her with working smoke

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detectors. (DE # 195 at 11.) Indiana Code § 22-11-18-3.5(e) states: “[e]ach owner or the
manager or rental agent of the owner is responsible for . . . the installation of a required
smoke detector[.]” Rose argues that Ayres and Helderman owned and managed Birch
Tree, which in turn owned and managed Rose’s apartment. (DE # 195 at 11-12.)
Rose classifies her claim as one of negligence per se; however, it appears from
her briefing that her claim is actually one for private right of action. The Indiana Court
of Appeals has emphasized the difference in the two types of claims, and their
respective burdens of proof. See Gresser v. Reliable Exterminators, Inc., 160 N.E.3d 184, 190
(Ind. Ct. App. 2020), transfer denied, 166 N.E.3d 909 (Ind. 2021); Stachowski v. Estate of
Radman, 95 N.E.3d 542, 543 (Ind. Ct. App. 2018). The Court of Appeals has stated:
[T]o satisfy the duty element of a negligence claim, a plaintiff must
demonstrate that a defendant had a duty toward the plaintiff that arose
either at common law or by statute. If a defendant had an existing
common-law duty of reasonable care, and if a plaintiff argues the
defendant’s violation of a statute or ordinance proves the breach of that
existing common-law duty, then the plaintiff has been said to be raising a
negligence-per-se claim. If, instead, the defendant had no common law
duty and the plaintiff asserts a statute or ordinance created duty
enforceable by plaintiff against defendant, then the plaintiff is said to be
raising a private-right-of-action claim.
Gresser, 160 N.E.3d at 190 (citing Stachowski, 95 N.E.3d at 543).
A plaintiff who asserts that the defendant’s duty arises from statute must
establish that the statute provides a private right of action. Id. at 193. “The issue when a
plaintiff claims a private right of action is whether the legislature that passed the statute
‘intended to establish not just a standard of conduct but a duty enforceable by tort
law.’” Id. at 190, n.1 (quoting Stachowski, 95 N.E.3d at 545); see also Cuyler v. United States,
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362 F.3d 949, 952 (7th Cir. 2004) (“[T]he mere fact that a statute defines due care does not
in and of itself create a duty enforceable by tort law.. . . Otherwise every statute that
specified a standard of care would be automatically enforceable by tort suits for
damages[.]” (emphasis in original)).
Ayres and Helderman argue that Rose has not asserted a private right of action
claim, and has therefore waived the claim. (DE # 206 at 4.) Regardless of how Rose
identifies her claim,2 Rose has made it clear that she asserts that defendants violated a
duty created by Indiana Code § 22-11-18-3.5(e). To establish that defendants’ duty
stemmed from this statute (and therefore she has a private right of action), Rose must
establish that the statute was designed to protect individuals like her, and the statute
does not include an independent enforcement mechanism. Gresser, 160 N.E.3d at 190,
n.1 (quoting Stachowski, 95 N.E.3d at 545). Aryes and Helderman both explicitly concede
– for the purposes of summary judgment – that the statute confers a private right of
action. (DE # 169 at 14; DE # 174 at 12.) By conceding that a private right of action
exists, Ayres and Helderman have failed to established that Rose cannot prove the duty
element of her claim. Accordingly, Ayres and Helderman’s motions for summary
judgment on this ground must be denied.
Two months after the expiration of the dispositive motion deadline and the filing
of its own dispositive motion, Birch Tree filed a “cross motion for summary judgment.”

2

The Indiana Court of Appeals recognizes that confusion between negligence per
se claims and private right of action claims is common. Gresser, 160 N.E.3d at 191.
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(DE # 190.) In this motion, Birch Tree argues, for the first time, that it is entitled to
summary judgment because Rose failed to establish that: (1) Birch Tree owed her a
common law duty of care, or (2) that Indiana Code § 22-11-18-3.5 confers a private right
of action. (DE # 188 at 17.) Birch Tree’s motion is an unauthorized and untimely second
motion for summary judgment, and will therefore be stricken. The portions of the brief
that serve as Birch Tree’s response to Rose’s motion for summary judgment remain in
the record.
B.

Proximate Cause

All parties claim that they are entitled to summary judgment on the question of
proximate cause. The court does not agree.
To prove causation, a plaintiff must “establish that the harm would not have
occurred but for the defendant’s conduct.” Mr. Bults, Inc. v. Orlando, 990 N.E.2d 1, 5
(Ind. Ct. App. 2013) (cleaned up). “Proximate cause must be based upon provable facts
and cannot be based upon mere guess, conjecture, surmise, possibility or speculation. In
other words, the factual evidence supplied must reflect some reasonable certainty or
probability.” Blasius v. Angel Auto., Inc., 839 F.3d 639, 645 (7th Cir. 2016) (cleaned up).
Rose argues that she is entitled to a finding of proximate cause as a matter of law
because “[d]efendants’ experts both testified that working smoke detectors would have
alerted [Rose and her children] to the fire in time to escape, like Rose’s neighbor.” (DE #
177 at 12.) This is a misrepresentation of the evidence. Rose relies on statements by
Hetrick and Jeff Tipton (a fire investigator who examined the scene) who both said that

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the purpose of a smoke detector is to alert occupants to the presence of fire and, as a
general matter, smoke detectors help save lives. (DE # 178-13 at 65; DE # 178-14 at 64.)
Rose cites no evidence where Tipton or Hetrick state that, in this case, a smoke detector
would have given Rose enough time to safely escape with her children. Moreover, Rose
does not provide any other evidence that definitively establishes such a finding.
Because Rose seeks summary judgment on a claim to which she bears the burden of
proof, she was required to demonstrate that “the record is so one-sided as to rule out
the prospect of a finding in favor of the non-movant on the claim.” Anderson, 477 U.S. at
254. She has failed to meet this burden with respect to the proximate cause element of
her claim. Therefore, her motion for summary judgment must be denied.
On the other hand, defendants argue that Rose cannot establish proximate cause
and therefore they are entitled to summary judgment. Defendants point to Hetrick’s
opinion that it cannot be reliably concluded that properly placed, functioning smoke
detectors would have enabled Rose to safely exit the apartment with her children. They
argue that, in light of Hetrick’s opinion, Rose cannot establish that the lack of working
smoke detectors proximately caused the children’s deaths and her injuries. (DE # 172 at
11-12; DE # 169 at 17-18; DE # 174 at 15.) Defendants argue that Rose has no evidence
that could create a question of fact to the contrary, and because only a single conclusion
could be drawn from the evidence, they are entitled to judgment as a matter of law. See
Ritchie v. Glidden Co., 242 F.3d 713, 725 (7th Cir. 2001) (under Indiana law, proximate
cause is an issue for the factfinder “unless only one conclusion can be drawn from the

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facts.” (cleaned up)).
The court cannot agree with defendants that only a single inference or conclusion
can be drawn from the evidence. True, Hetrick opined that it cannot be reliably
concluded that Rose would have had time to escape with her children had there been
working smoke detectors. However, a jury need not accept his ultimate conclusion.
“The question of whether the expert’s theory is correct given the circumstances of a
particular case is a factual one left for the jury to determine.” Stuhlmacher v. Home Depot
U.S.A., Inc., 774 F.3d 405, 409 (7th Cir. 2014). At the summary judgment phase, an
expert’s opinion on causation merely helps a plaintiff get to a fact finder; the expert
does not serve as the fact finder. Blasius, 839 F.3d at 648. To proceed to trial, “a plaintiff
need only produce evidence sufficient to potentially persuade any reasonable jury.” Id.
(emphasis in original).
In this case, a reasonable jury could review all of the evidence, including
Hetrick’s overlapping estimates of how long Rose would have needed to escape and
how long she would have had to escape the different fire scenarios, and come to the
conclusion that, but-for the lack of working smoke detectors, Rose could have safely
exited the apartment with her children. Since there is more than one conclusion that
may be drawn from the undisputed facts, defendants are not entitled to summary
judgment on the issue of proximate cause. See Ohrn v. JDPHD Inv. Grp., LLC, No.
1:12-CV-00620-TWP, 2013 WL 6175165, at *10 (S.D. Ind. Nov. 25, 2013) (finding fact
question existed as to whether fire alarm failure proximately caused decedent’s death).

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Rose’s amended complaint alleges that the apartment had non-functioning
electrical outlets, a water leak, problems with the range, and non-functioning locks. (DE
# 42 at 5.) Defendants move for summary judgment on these claims. This aspect of
defendants’ motions for summary judgment is granted. Rose’s briefing makes it plain
that her allegations regarding the outlets, water leak, range, and locks are not the basis
of her negligence claim against defendants. (See DE # 195 at 13.)
C.

Comparative Fault

All parties are in agreement that because Rose’s claim sounds in negligence,
Indiana’s Comparative Fault Act applies and fault may be attributed to Rose. See Ind.
Code § 34-51-2-1, 5. Defendants argue that, pursuant to Indiana Code § 22-11-183.5(d)(3), Rose was obligated to test the functionality of the smoke detector in her
apartment. (DE # 169 at 18; DE # 172 at 12; DE # 174 at 16.) That section provides: “[a]ll
smoke detectors must be . . . maintained and at least one (1) time every six (6) months
tested by the occupant to ensure that the smoke detector is in operational condition.” Id.
Rose responds that defendants have failed to establish that she occupied the apartment
for six months prior to the fire. (DE # 195 at 21.) Rose’s lease began on May 1, 2016, and
the fire occurred on November 21, 2016, six months and three weeks after the start of
her lease. However, Rose argues that there is no evidence in the record establishing
when in May she moved into the apartment. If Rose moved in after May 21, 2016, her
obligation under the statute would not yet have accrued at the time of the fire.
The defense of comparative fault is an affirmative defense. See Kimbrough v.

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Anderson, 55 N.E.3d 325, 336 (Ind. Ct. App. 2016). Therefore, because defendants seek
summary judgment on a claim to which they bear the burden of proof, defendants were
required to establish that the record is so one-sided as to rule out the prospect of a
finding in favor of Rose on the claim. Anderson, 477 U.S. at 254. They have not done that.
Defendants argue that possession and control of the apartment triggered the statute, not
occupancy. They cite no support for their position. The statute requires the “occupant”
to test the smoke detectors once every six months. Defendants have not established that
Rose occupied the apartment for six months prior to the fire. Accordingly, defendants’
motion for summary judgment on this affirmative defense is denied.
D.

Damages

Defendants move for summary judgment on Rose’s damages claim for
psychiatric and psychological counseling for the remainder of her life. (DE # 169 at 19;
DE # 172 at 14; DE # 174 at 16.) Defendants argue that Indiana Code § 34-23-2-1(g)
limits the period of time for which damages may be awarded for the wrongful death of
a child, and they seek summary judgment limiting this portion of Rose’s damages claim
to the period of time prescribed by statute. In response, Rose states that she intends to
seek damages allowed by statute. (DE # 195 at 23.) Accordingly, defendants’ motion
with regard to Rose’s damages claim for psychiatric and psychological counseling
related to the deaths of her children is granted.
Defendants also move for summary judgment on Rose’s claim for punitive
damages, on the basis that (1) punitive damages are not recoverable in a claim for the

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wrongful death of a child, and (2) Rose cannot prove that defendants’ conduct warrants
the imposition of punitive damages. (DE # 169 at 20; DE # 172 at 16; DE # 174 at 17.) In
response, Rose abandons her punitive damages claim. (DE # 195 at 23.) Accordingly,
defendants’ motion with regard to this claim is granted.
E.

Requests to Strike Evidence

The parties have made various requests for this court to strike evidence from the
record. There is no need to strike the challenged evidence because the evidence was not
considered in the resolution of the motions for summary judgment. Therefore, the
requests to strike are denied as moot. For the same reason, Rose’s motion for the court
to not consider defendants’ new arguments in their reply brief (DE # 216) is also denied
as moot.
Finally, Rose states that she “maintains a continuing objection to the relevance
and admissibility of Hetrick’s opinions for purposes of summary judgment under Rule
702 and 403.” (DE # 195 at 10.) This argument is undeveloped and is therefore
considered waived for purposes of resolving the pending motions. An argument
presented without citation to authority or any substantive development need not be
considered by a court. United States v. Collins, 796 F.3d 829, 836 (7th Cir. 2015) (rejecting
argument presented in single sentence without development or citations as a
perfunctory and underdeveloped afterthought).

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IV.

CONCLUSION
For the foregoing reasons, the court:
(1)

DENIES plaintiff’s motion for partial summary judgment (DE # 176);

(2)

GRANTS in part and DENIES in part defendants’ motions for summary
judgment (DE ## 168, 171, 173), on the terms identified in this Opinion
and Order;

(3)

GRANTS plaintiff’s motion to strike defendant Birch Tree’s cross motion
for summary judgment (DE # 210);

(4)

STRIKES defendant Birch Tree’s cross motion for summary judgment
(DE # 190);

(5)

GRANTS plaintiff’s motion for leave to file reply exhibit (DE # 211);

(6)

DENIES as moot plaintiff’s motion for the court to not consider
defendants’ new arguments in their reply brief (DE # 216); and

(7)

REFERS this case to Magistrate Judge John E. Martin for settlement
proceedings; should those proceedings be fruitless, a trial date and
pretrial filing deadlines will be set under separate order.
SO ORDERED.

Date: August 25, 2022
s/James T. Moody
JUDGE JAMES T. MOODY
UNITED STATES DISTRICT COURT

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