400 N.E.2d 1142 (Ind.App. 2 Dist. 1980), 2-1178a374, Barbre v. Indianapolis Water Co.

Docket Nº:2-1178a374.
Citation:400 N.E.2d 1142
Party Name:Brett BARBRE, Appellant (Plaintiff Below), v. INDIANAPOLIS WATER COMPANY and Shorewood Corporation, Appellees (Defendants Below).
Case Date:February 21, 1980
Court:Court of Appeals of Indiana

Page 1142

400 N.E.2d 1142 (Ind.App. 2 Dist. 1980)

Brett BARBRE, Appellant (Plaintiff Below),

v.

INDIANAPOLIS WATER COMPANY and Shorewood Corporation,

Appellees (Defendants Below).

No. 2-1178a374.

Court of Appeals of Indiana, Second District.

February 21, 1980

Page 1143

[Copyrighted Material Omitted]

Page 1144

Dean E. Richards, Richards, Bennett, Bravard & Bibbins, Indianapolis, for appellant.

William C. Moore, Steckbeck, Moore, Cohen & O'Dell, Indianapolis, for appellee, Indianapolis Water Co.

Hugh Watson, Locke, Reynolds, Boyd & Weisell, Indianapolis, for appellee, Shorewood Corp.

BUCHANAN, Chief Judge.

CASE SUMMARY

Plaintiff-appellant Brett Barbre (Brett) appeals a summary judgment entered against him claiming that because there were material issues of fact involved in the controversy the trial court erred in granting summary judgment.

We affirm.

FACTS

The facts 1 necessary to our disposition of this appeal are:

On July 3, 1975, Brett and five other companions planned a swimming expedition and traveled from their home in Anderson, Indiana, to Morse Reservoir, near Cicero in Hamilton County. Brett was 17 at this time and had completed his junior year of high school. He testified in his deposition that this was his first visit to this particular area of Morse Reservoir, the place where he and his friends selected for their swim.

As Brett walked towards the lake he saw no signs prohibiting swimming or trespassing nor any fences or wires constructed to keep people out. He did see other cars parked nearby and observed people swimming in the lake.

On the bank of the reservoir a ladder and rope apparatus had been constructed allowing swimmers to swing from the rope and drop into the water. Brett swung on this rope several times without mishap. In describing the water, Brett stated he realized the water was deeper towards the center of the reservoir and shallower along the banks.

After swimming for approximately one-half hour, Brett decided to dive into the water from a cliff (he had previously seen one other person dive into the water from a different location along the shore). Unfortunately he dove into shallow water and struck his head on the bottom of the reservoir. He remained conscious as several friends pulled him out of the water and laid him on the shore. His statement was that after he hit the bottom of the reservoir he had no feeling below his armpits.

As a result of this injury, Brett became a quadriplegic and spent many months in several hospitals.

On March 19, 1976, Brett filed a complaint against the Indianapolis Water Co. (Water Co.) in Hamilton Superior Court and on May 6, 1976, was allowed to amend his complaint to add Shorewood Corporation (Shorewood) as an additional defendant. 2 The complaint alleged that the negligence of either the Water Co. or Shorewood, or both, was the proximate cause of his injury.

The trial court entered summary judgment for both Water Co. and Shorewood.

ISSUES

Brett presents one issue for our consideration: 3

Page 1145

Were there genuine issues of material fact thereby rendering granting of summary judgment improper?

DECISION

PARTIES' CONTENTIONS Brett contends there were material issues of fact as to the negligence of the defendants.

The Water Co. and Shorewood respond that they owed no duty to Brett as a trespasser (or at best a licensee) and therefore Brett took the conditions of the land as he found them.

CONCLUSION Because the Water Co. and Shorewood owed no duty to Brett, there were no material issues of fact in controversy. So summary judgment was proper.

The function of a summary judgment proceeding is to expedite the...

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