Booher v. SHEERAM, LLC
937 N.E.2d 392
Ind. Ct. App.2010Background
- Before April 2004 Hampton Inn addressed slippery bathtubs by hiring Perma Safety to apply a non-skid coating.
- Perma Safety coated a 15x38 inch area, not the entire tub bottom, but per industry safety standards.
- Mary Booher slipped in a hotel bathtub on September 4, 2004, and sustained injuries.
- The Boohers filed suit on September 5, 2006, alleging negligent maintenance of the bathtub.
- Hampton Inn moved for summary judgment on April 18, 2008; extensions were granted until August 18, 2008 and November 7, 2008.
- The Boohers sought a three-week extension due to an expert’s delay and counsel’s major surgery, but did not file a formal court extension.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the court err in striking the Boohers' submissions as untimely? | Boohers relied on opposing counsel's assurances of a three-week extension. | Untimely response violated Trial Rule 56; no formal extension filed, no discretion to accept. | Strike upheld; no discretion to accept late filings. |
| Was summary judgment proper given the evidence of duty and breach? | There are material facts about duty and failure to warn/maintain. | Hampton Inn met industry standards and had no breach given expert-coordinated coating. | Yes; summary judgment affirmed. |
Key Cases Cited
- HomEq Servicing Corp. v. Baker, 883 N.E.2d 95 (Ind.2008) (bright-line 56(I) rule on extensions and responses)
- Desai v. Croy, 805 N.E.2d 844 (Ind.Ct.App. 2004) (extension must be sought within 30 days for discretion)
- Owens Corning Fiberglass Corp. v. Cobb, 754 N.E.2d 905 (Ind.2001) (summary judgment standard: no genuine issue of material fact; view in favor of nonmovant)
- Hopper v. Colonial Motel Properties, Inc., 762 N.E.2d 181 (Ind.Ct.App.2002) (hotel guest as business invitee; duty to exercise reasonable care but not to insure safety)