ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEES Caren L. Pollack Timothy F. Devereux Zachary J. Stock Indianapolis, Indiana FILED Indianapolis, Indiana Jan 24 2019, 8:59 am CLERK Indiana Supreme Court Court of Appeals and Tax Court IN THE COURT OF APPEALS OF INDIANA Crawfordsville Town & Country January 24, 2019 Home Center, Inc., Court of Appeals Case No. Appellant-Defendant, 18A-CT-314 Appeal from the Allen Superior v. Court The Honorable David J. Avery, Odilon Elias Cordova, Jamie Judge Busse, and Do It Best Corp, Trial Court Cause No. Appellees-Plaintiffs/Defendant. 02D09-1512-CT-543 Tavitas, Judge. Case Summary [1] Crawfordsville Town & Country Home Center, Inc. (“Town & Country”) appeals the trial court’s denial of its motion for summary judgment in proceedings brought by Odilon Elias Cordova (“Cordova”) and Jamie Busse (“Busse”). We reverse and remand. Court of Appeals of Indiana | Opinion 18A-CT-314| January 24, 2019 Page 1 of 20 Issue [2] Town & Country raises two issues. We find the following issue dispositive: Whether the trial court properly denied Town & Country’s motion for summary judgment based on lack of duty. Facts [3] The parties’ designated evidence demonstrates that, in August 2014, the owners of a Mexican restaurant in Crawfordsville hired Rogelio Barcelata to paint the rear exterior wall of the restaurant. Barcelata asked Cordova and Rutelio Gonzales to assist and split the payment for the work. To remove the old paint, the men decided to rent a pressure washer and an aerial lift. Barcelata and Cordova 1 went to Town & Country, where Corey Perigo, the rental department manager, assisted them. [4] Barcelata, Gonzales, and Cordova speak limited English. Barcelata and Cordova testified in depositions that they cannot read English. Perigo testified in a deposition that Barcelata spoke fluent English and that he did not know if the other men spoke English. Cordova is married to Busse, and they communicate in English. 1 In a deposition, Corey Perigo testified that three men were at Town & Country. Cordova testified that Gonzales stayed in the van as Cordova and Barcelata went inside. Court of Appeals of Indiana | Opinion 18A-CT-314| January 24, 2019 Page 2 of 20 [5] Perigo rented the equipment to Barcelata. According to Perigo, he explained the operation of the aerial lift to Barcelata. According to Cordova, however, Perigo explained how to use the aerial lift to Cordova, who spoke more English than Barcelata. Perigo also showed Cordova where the operator’s manual was located. The operator’s manual and the warning labels on the aerial lift are all written in English. Cordova did not ask for the instructions or safety information to be provided in Spanish. Perigo spent fifteen to twenty minutes giving an operation and safety orientation. Perigo conceded, however, most of that time was spent on operation of the aerial lift, not safety. Perigo did not review the operator’s manual with Cordova or Barcelata. [6] The aerial lift had multiple warning labels with diagrams placed on the aerial lift by the manufacturer that directed users not to use the lift ...
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