405 N.E.2d 591 (Ind.App. 1 Dist. 1980), 1-1079A276, Wiles v. Mahan

Docket Nº:1-1079A276.
Citation:405 N.E.2d 591
Party Name:Bertha M. WILES, Appellant (Plaintiff Below), v. Ancel MAHAN d/b/a Mahan IGA Foodliner, Appellee (Defendant Below).
Case Date:June 16, 1980
Court:Court of Appeals of Indiana

Page 591

405 N.E.2d 591 (Ind.App. 1 Dist. 1980)

Bertha M. WILES, Appellant (Plaintiff Below),

v.

Ancel MAHAN d/b/a Mahan IGA Foodliner, Appellee (Defendant Below).

No. 1-1079A276.

Court of Appeals of Indiana, First District.

June 16, 1980

Page 592

R. Jerome Kearns, Kearns & Kearns, James L. Crawford, Sacopulos, Crawford & Johnson, Terre Haute, for appellant.

Cox, Zwerner, Gambill & Sullivan, Terre Haute, John M. Baumunk, Brazil, for appellee.

ROBERTSON, Presiding Judge.

Bertha M. Wiles (Wiles) appeals an adverse judgment in her premises liability action. Wiles brought suit for personal injuries because of a slip and fall in the parking lot of defendant-appellee Ancel Mahan d/b/a Mahan IGA Foodliner (Mahan). The

Page 593

injury occurred as Wiles left the store and entered onto the parking lot. She slipped on oil or antifreeze which apparently had leaked from an automobile parked in the lot. We note in passing that the owner's parking lot was abutting the sidewalk next to the store, that is: there was no firelane between the parking lot and the store. Trial was held with a jury and the jury returned a verdict for the defendant owner. Wiles appeals on instructional errors and various evidentiary questions.

We affirm.

We first consider the instructional errors claimed.

The first error claimed by Wiles is that the instruction given on the duty of a storekeeper to business invitees was an incorrect statement of law and, because is was allegedly mandatory, it was erroneous in excluding an essential element or theory presented by Wiles.

We will not set the instruction out in full but will summarize it as stating the duty of reasonable care to keep a store in a safe condition for the use of customers and further stating that to show a breach of duty there must be an unsafe condition and actual or constructive knowledge of the unsafe condition. The next paragraph of the instruction, of which Wiles complained at trial, stated that if the jury found there was no dangerous condition, or actual knowledge of a dangerous condition, or constructive knowledge of a dangerous condition, then the jury should find for the defendant. Wiles's complaint is that the second conjunctive, "or", means that if the jury found no actual knowledge, then it had to find for the defendant. This hypertechnical analysis ignores the clear language of the first paragraph, summarized above, setting out the elements on the breach of duty. Viewing the instruction as a whole, we do not find reversible error here. See Hendrix v. Harbelis, (1967) 248 Ind. 619, 624, 230 N.E.2d 315, 319.

The second claimed error concerning this same instruction is that it excluded an essential theory of Wiles's case, which, it is argued, is error in a mandatory instruction. The theory Wiles presented at trial and upon which a separate instruction was given based Mahan's negligence on allowing or acquiescing to the practice of customers parking their automobiles in the probable path of entrance to the store, creating the possibility of motor fluids being left by the vehicles in the path. The theory included the alleged practice of allowing customers to put fluids in their vehicles in the lot with the risk of leaked fluids being left. 1

Wiles complains that the "recurring dangerous condition" theory should have been in the so-called mandatory instruction itself, for "it is well-settled in Indiana that a mandatory instruction must set out all elements essential for recovery, and if an essential element is omitted, the instruction is erroneous and cannot be cured by other instructions." Davison v. Williams, (1968) 251 Ind. 448, 454, 242 N.E.2d 101, 104 (Citations omitted.)

Wiles's argument fails because the instruction given was not mandatory, and thus, we can consider all the instructions given as a whole in determining whether they were adequate. See Illinois Central Gulf Railroad Co. v. Parks, (1979) Ind.App., 390 N.E.2d 1073, 1077.

Perry v. Goss, (1970) 253 Ind. 603, 605, 255 N.E.2d 923, 925, states:

Instructions which are mandatory in character, which attempt to set up a factual situation directing the jury to a certain result, are to be distinguished from instructions which merely state propositions of law without incorporating a factual situation, as for example telling the jury that if contributory negligence exists the plaintiff is not entitled to recover. In the latter case the court is merely stating propositions of law not based upon a detailed factual situation.

Page 594

The instruction given clearly stated propositions of law without a detailed factual situation. Thus, it was not mandatory and the instruction given on "recurring dangerous conditions" dovetailed with the instruction on the duty of a storeowner to a customer. There was no error here.

Wiles next complains that the trial court should have given her second submitted instruction on the "recurring dangerous condition." As stated above, an instruction was given on the theory. However, Wiles complains that the instruction given did not adequately emphasize that Mahan need not have actual or constructive knowledge of the dangerous condition on the day of the occurrence. The instruction given stated that the knowledge necessary for liability was knowledge of the recurring condition. This was more than adequate instruction on the type of knowledge necessary for liability. Thus, there is no error here. Dahlberg v. Ogle, (1978) Ind., 373 N.E.2d 159, 164-165.

The next instruction, which was refused and thus error claimed, was adequately covered by another instruction given by the court. Dahlberg, supra. Specifically, Wiles complains that nowhere in the instructions given is the defendant's duty stated to be active and continuous. This ignores the court's Final Instruction No. 9, which ends, "This duty (to use ordinary care to maintain his property in reasonably safe conditions suitable for use of those who come upon it as invitees) is active and continuous." There is no error here.

The next instruction, tendered by Wiles and refused by the trial court, was a more specific statement of the duty of the storeowner to an invitee, in that it stated that the defendant's duty of care included the provision of safe and suitable means of ingress and egress to his store premises. Without indulging in an analysis of what exactly ingress and egress means, we merely point out that the trial court did make several statements that an owner of property must maintain it in a reasonably safe condition for invitees. The instructions taken as a whole were not limited to the inside of the store, but the property as a whole. This adequately covered the subject matter. There is no error here.

In consideration of the next instruction, we deem that Wiles did not make a sufficiently detailed objection to the instruction. In brief, the instruction stated that a storeowner was not an insurer of his customer's safety and further, stated that merely because there was an injury on the owner's premises, there was no presumption of negligence on the storeowner's part.

Wiles objected at trial that the instruction was repetitive, irrelevant and immaterial, contained an inaccurate statement of the law and was confusing, vague, ambiguous and highly prejudicial. In her appellant's brief, she claims that the instruction suggested by the word "insured", that the storeowner had no insurance coverage and that the instruction was a "mere accident" instruction. If Wiles had these specific objections, she should have made them to the trial court, not for the first time on appeal.

The next instruction of which Wiles complains was tendered by the defendant and given by the court. The instruction states that a storekeeper must use ordinary care to keep premises in a reasonably safe condition for customers and "(o)rdinary care, as applied to storekeepers, is that degree of care usually exercised by ordinary prudent person engaged in the same line of business."

Wiles specifically objected to the alleged use of the industry standard as a standard of due care.

It is true that the standard set by an industry is not the definition of reasonable care. Gilbert v. Stone City Construction Co., Inc., (1976) Ind.App., 357 N.E.2d 738, 745. See also P-M Gas & Wash. Co., Inc. v. Smith, (1978) Ind.App., 383 N.E.2d 357, 358; see also Walters v. Kellam & Foley, (1977) Ind.App., 360 N.E.2d 199, 214.

We note that the instruction did not actually set the standard as that of the industry for it says "ordinary prudent person engaged in the same line of business,"

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