Countrymark Cooperative, Inc., (“Countrymark, Inc.”) and Countrymark Cooperative, LLP, (“Countrymark, LLP”) (collectively, “Countrymark”) appeal a judgment in favor of Joseph Hammes, Trustee of Stephen Turner, (“Turner”). Countrymark raises three issues, which we revise and restate as:
1. Whether the trial court erred by denying Countrymark’s motion for summary judgment;
2. Whether the trial court erred by granting Turner’s motion to amend his complaint to conform to the evidence; and
3. Whether the trial court erred by denying Countrymark’s motion for judgment on the evidence pursuant to Ind. Trial Rule 50.
Conclusion (slip op. at 19): We affirm the judgments against Countrymark, LLP, and Countrymark, Inc.
Key Analysis (slip op. at 12): We conclude that genuine issues of material fact exist as to whether Countrymark, by the exercise of reasonable care, would have discovered the dangerous condition and should have realized that it involved an unreasonable risk of harm to Turner, whether Countrymark should have expected that Turner would fail to protect himself from the danger, and whether Countrymark failed to exercise reasonable care to protect Turner. Further, given Countrymark’s failure to staff the gas racks, genuine issues exist as to whether Countrymark should have anticipated the harm despite Turner’s knowledge of the danger or the obviousness of the danger.