P-M Gas & Wash Co., Inc. v. Smith, P-M

• Decision Date: 07 December 1978
• Docket Number: No. 2-1275A357,P-M,2-1275A357
• Citation: 178 Ind.App. 457,383 N.E.2d 357
• Parties: GAS & WASH COMPANY, INC., An Indiana Corporation, Appellant and Cross-Appellee (Defendant below), v. Ronald SMITH b/n/f Clara Smith and Richard Smith, Appellees and Cross-Appellants (Plaintiffs below).
• Court: Indiana Appellate Court

Page 357

383 N.E.2d 357

178 Ind.App. 457

P-M GAS & WASH COMPANY, INC., An Indiana Corporation Appellant and Cross-Appellee (Defendant below), v. Ronald SMITH b/n/f Clara Smith and Richard Smith, Appellees and Cross-Appellants (Plaintiffs below).

No. 2-1275A357.

Court of Appeals of Indiana, Second District.

Dec. 7, 1978.

James J. Stewart, Richard S. Ewing, Stewart, Irwin, Gilliom, Fuller & Meyer, Indianapolis, for appellant and cross-appellee.

Daniel F. Cummings, Marcus C. Emery, Cummings & Emery, Indianapolis, for appellees and cross-appellants.

SULLIVAN, Judge.

This is a premises liability case in which Ronald Smith, by next friends Clara and Richard Smith, sought damages from P-M Gas & Wash Company, Inc. (P-M) for injuries allegedly sustained when the ten-year-old child's foot was caught in P-M's car wash conveyor mechanism. The jury returned a verdict in P-M's favor, but the trial court granted Smith's Motion to Correct Errors and order a new trial. P-M appealed this ruling and Smith cross-appealed. This court sustained P-M's motion to dismiss the cross-appeal for failure to comply with Ind.Rules of Procedure, Trial Rule 59(D). P-M Gas & Wash Co., Inc. v. Smith (2d Dist. 1976) Ind.App., 352 N.E.2d 91. That decision was reversed by the Supreme Court and the case remanded to this court with directions to determine the cross-appeal on its merits. P-M Gas & Wash Co., Inc. v. Smith (1978) Ind., 375 N.E.2d 592.

The trial judge ordered a new trial because his instruction regarding P-M's standard of care was erroneous. The instruction stated:

"Custom in a trade or business establishes the standard of care for those engaged in such trade or business, and one cannot be held negligent for failure to do more than the fair average of those engaged in similar trade or business."

It can hardly be supposed that "custom in a trade or business Establishes the standard of care for those engaged in such trade or business." (Emphasis supplied). Indeed, there is but one standard of care in negligence cases that of reasonable care under the circumstances. While custom is evidence which may be considered by the trier of fact in determining what is or is not negligent conduct, Booher v. Alhom, Inc. (1st Dist. 1973) 156 Ind.App. 192, 295 N.E.2d 841, 849, we have noted that care should be taken to distinguish between the evidentiary use of custom and its use to establish a standard of care. Walters v. Kellam & Foley (2d Dist. 1977) Ind.App., 360 N.E.2d 199, 214. In Walters we quoted an oft-cited statement by Justice Holmes in Texas & Pacific Ry. Co. v. Behymer (1903) 189 U.S. 468, 23 S.Ct. 622, 623, 47 L.Ed. 905:

" 'What is usually done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it is usually complied with or not.' " 360 N.E.2d at 214.

Therefore, we hold that the instruction was an incorrect statement of the law.

P-M has advanced two arguments why the erroneous instruction should not be cause for a new trial. First, it is argued that the trial court should have granted P-M's Motion for Judgment on the Evidence at the close of all the evidence. Ind.Rules of Procedure, Trial Rule 50. Second, it is argued that any error occasioned by the instruction was harmless.

P-M contends that plaintiff was a "mere licensee" to whom was owed the duty only to refrain from willful and wanton conduct. P-M argues that because there was no evidence of any conduct which could be characterized as willful and wanton, it was entitled to a directed verdict.

Judgment on the evidence is appropriate only where "there is a lack of reasonable evidence of probative value upon one or more of the factual issues necessary to support a verdict, and there is no reasonable inference that can be drawn from such evidence in favor of the plaintiff." Miller v. Griesel (1974) 261 Ind. 604, 308 N.E.2d 701, 707. The evidence must be viewed in the light most favorable to the non-moving party, Meadowlark Farms, Inc. v. Warken (1st Dist. 1978) Ind.App., 376 N.E.2d 122, 128, and if there is any evidence of probative value or reasonable inference therefrom tending to support the plaintiff's claim, or if the evidence is conflicting such that reasonable minds might differ as to the conclusion to be drawn therefrom, judgment on the evidence is improper. Allison v. Huber, Hunt & Nichols, Inc. (1st Dist. 1977) Ind.App., 362 N.E.2d 193, 195. Thus, judgment on the evidence is proper only where the evidence is without conflict and is susceptible to but one inference in favor of the moving party. Mamula v. Ford Motor Co. (1971) 150 Ind.App. 179, 275 N.E.2d 849, 852.

In Swanson v. Shroat (2d Dist. 1976) Ind.App., 345 N.E.2d 872, this court thoroughly examined the rules of premises liability and concluded that ordinarily, possessors of land are not liable for injuries to licensees in the absence of "positive wrongful acts" or "willful and wanton conduct." However, Swanson also noted that certain exceptions have been carved into this rigid common-law rule, most notably with respect to child licensees who may not appreciate the risks which inhere in a particular condition upon the land:

"The circumstances under which a premises owner may be held liable for injuries sustained by a licensee, whether adult or child, are clearly and concisely set forth in the Restatement of Torts, 2d, § 342, which was quoted with approval in Wozniczka v. McKean ((1969) 144 Ind.App. 471, 247 N.E.2d 215, 223). That section reads as follows:

'342. Dangerous Conditions Known to Possessor.

A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,

(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and

(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and

(c) the licensees do not know or have reason to know of the condition and the risk involved.'

"The comments to § 342 provide a coherent guide for its application without the confusing terminology which has prevailed in Indiana cases over the past 90 years. Comment (b) to that section is particularly helpful here. It reads:

'b. If the licensees are adults, the fact that the condition is obvious is usually sufficient to apprise them, as fully as the possessor, of the full...