Kelly v. Ladywood Apartments

• Decision Date: 08 November 1993
• Docket Number: No. 49A04-9302-CV-71,49A04-9302-CV-71
• Parties: Shawn KELLY, Appellant-Plaintiff, v. LADYWOOD APARTMENTS, Appellee-Defendant.
• Court: Indiana Appellate Court

Page 1044

622 N.E.2d 1044

Shawn KELLY, Appellant-Plaintiff, v. LADYWOOD APARTMENTS, Appellee-Defendant.

No. 49A04-9302-CV-71.

Court of Appeals of Indiana,

Fourth District.

Nov. 8, 1993.

Rehearing Denied Jan. 7, 1994.

Richard Andrew Young, John P. Young, Young & Young, Indianapolis, for appellant-plaintiff.

Steven E. Springer, John B. Drummy, Kightlinger & Gray, Indianapolis, for appellee-defendant.

CONOVER, Judge.

Plaintiff-Appellant Shawn Kelly appeals the trial court's grant of summary judgment in favor of Defendant-Appellee Ladywood Apartments in his personal injury case.

We affirm.

Kelly's sole issue for our review is whether the trial court erred in granting summary judgment.

On December 25, 1990, John Kelly brought Shawn, his six year old son, to a hill owned by Ladywood Apartments in Indianapolis to go sledding. When they arrived, approximately two to three inches of snow covered the ground. Several other people were already there sledding. No warning signs were up prohibiting sledding. Ladywood had occasionally posted temporary fencing and "No Trespassing" signs in the area. As Shawn went down the hill, his sled struck a raised, snow-covered concrete manhole cover. It stood approximately six inches above the ground. He sustained serious permanent facial injuries.

On July 24, 1991, Kelly filed a complaint against Ladywood Apartments, alleging negligence. Subsequently, Ladywood moved for summary judgment. It relied on IND.CODE 14-2-6-3, Indiana's recreational land user statute, which it claimed limited its liability. In response, Kelly argued IC 14-2-6-3 did not limit Ladywood's liability, and even if it did, the sledding hill came within the attractive nuisance exception of the statute. After a hearing, the trial court granted Ladywood's motion.

Ind.Trial Rule 56(C) places the burden on the movant to establish the propriety of the entry of summary judgment. The moving party must make a prima facie showing that (1) there is no issue of material fact, and (2) the movant is entitled to judgment as a matter of law. If both requirements are met, the burden shifts to the nonmoving party to show specific facts indicating an issue of material fact. Smith v. Amli Realty Co. (1993), Ind.App., 614 N.E.2d 618, 620.

In determining whether summary judgment is appropriate, all facts asserted by the nonmoving party are accepted as true and any doubts are to be resolved in favor of the nonmoving party. Northern Indiana Public Service Co. v. East Chicago Sanitary Dist. (1992), Ind.App., 590 N.E.2d 1067, 1071. Even if the facts are not in dispute, summary judgment is inappropriate if conflicting inferences could be drawn from those facts. Newhouse v. Farmers National Bank (1989), Ind.App., 532 N.E.2d 26, 28. Summary judgment is rarely appropriate in a negligence action. Jump v. Bank of Versailles (1992), Ind.App., 586 N.E.2d 873, 875. On appellate review the trial court's judgment will be affirmed if sustainable on any theory or basis found in the designated record. Smith, 614 N.E.2d at 621.

Kelly contends IC 14-2-6-3 does not bar his claim as a matter of law because it applies only to rural outdoor activities, not sledding in urban areas. He claims applying the statute to the facts of this case would lift it from its natural place in Article 6 "Wild Animal Regulations-Possession and Transportation" to an application outside its thematic subject matter. Additionally, he claims the language in the first sentence of the statute does not limit the landowner's liability but only offers the recreational user no assurance the land is safe.

Almost all states have enacted recreational user statutes to reduce the tendency of landowners to withdraw land from recreational access by removing the risk of gratuitous tort liability that a landowner might run unless he can successfully bar any entry to his property for enumerated recreational uses. 62 Am.Jur.2d Premises Liability Sec. 119 (1990).

IC 14-2-6-3 contains general restrictions on a landowner's liability to persons using land for recreational activities. It reads:

Non-Liability of Landowners.--Any person who goes upon or through the premises including, but not as a limitation, lands, waters and private ways of another with or without permission to hunt, fish, swim, trap, camp, hike, sightsee or for any other purposes, without the payment of monetary consideration, or with payment of monetary consideration directly or indirectly on his behalf by an agency of the state or federal government, is not thereby entitled to any assurance that the premises are safe for such purposes. The owner of such premises does not assume responsibility for nor incur liability for any injury to person or property caused by an act or failure to act of other persons using such premises: Provided, That the provisions of this section shall not be construed as affecting the existing case law of Indiana of liability of owners or possessors of premises with respect to business invitees in commercial establishments nor to invited guests nor shall this section be construed as to affect the attractive nuisance doctrine: Provided, further, That nothing in this section contained shall excuse the owner or occupant of premises from liability for injury to person or property caused by the malicious or illegal acts of the owner or occupant.

When construing a statute, this court is guided by several rules of statutory construction. First, it must be noted that when a statute is clear and unambiguous, on its face, the court need not, and indeed may not, interpret the statute. Whiteacre v. State of Indiana and Indiana Department of Natural Resources, 619 N.E.2d 605, 606 (Ind.App.1993). When a statute is ambiguous, the court must ascertain the intent of the legislature and interpret the statute to effectuate that intent. Economy Oil Corp v. Indiana Dept. of State Revenue (1974), 162 Ind.App. 658, 321 N.E.2d 215, 218. When so doing, we read the statutes of an act as a whole and attempt to give effect to all provisions. Id. We may look to the titles and the headings of a statute in construing the intent of the legislature. Indiana State Highway Com'n v. Bates & Rogers Const., Inc. (1983), Ind.App., 448 N.E.2d 321, 324.

Consideration of the reasons and policy underlying a statute and of the goals sought to be achieved by the legislation is indispensable to our ascertainment of the legislature's intent. Watkins v. Alvey (1990), Ind.App., 549 N.E.2d 74, 76. Courts should also consider the consequence of a particular construction. Lemert Engineering Company, Inc. v. Monroe Auto Equipment Co., Inc. (1983), Ind.App., 444 N.E.2d 859, 862. A grant of immunity is in derogation of the common law and must therefore be strictly construed. Tittle v. Mahan (1991), Ind., 582 N.E.2d 796, 800.

The Indiana legislature's purpose for enacting the recreational use statute is apparent: To encourage landowners to open their property to the public for recreational purposes free of charge. Clem v. United States (N.D.Ind.1985), 601 F.Supp. 835, 841.

We conclude the statute offers a dual protection for landowners who permit their land to be used by others for recreational purposes. The first sentence of the statute relates to injuries caused by the condition of the land, while the second sentence relates to injuries ... which are caused by acts of a recreational user. Schwartz v. Zent (1983), Ind.App., 448 N.E.2d 38, 39. To find otherwise would defeat the purpose of the statute and render the language of the third and fourth sentence of the statute meaningless. The third sentence provides in part: "The provisions of this section shall not be construed as affecting the existing case law of Indiana of liability of owners or possessors of premises with respect to business invitees in commercial establishments nor to invited guests...." Clearly, the statute was to have an affect as to non-invitees.

The fourth sentence provides: "Nothing in this section contained shall excuse the owner or occupant of premises from liability for injury to persons or property caused by the malicious or illegal acts of the owner or occupant." If owners are not being excused from liability for injuries caused by the condition of the premises, why include an exception or excuse from liability for injury to persons or property caused by malicious or illegal acts?

The only reasonable interpretation of the statute is that subject to the exceptions listed in the statute (attractive nuisance and malicious or illegal acts), the statute excuses an owner from liability to persons (other than business invitees and invited guests) using the property for recreational purposes without pay of monetary consideration, whether injury is caused by the condition of the land or by another recreational user.

This construction of the statute reflects its title and effectuates the purpose of the statute. Encouraging landowners to open their lands for recreational use is given best effect by construing the statute to provide the same protection for the landowner whether the injury is caused by a condition of the land or by the acts of another recreational user.

We also find support for interpreting the statute to protect the landowner both for injuries by others or those caused by the condition of the land in case law. In Schwartz, 448 N.E.2d at 39, the court, although directly applying the second sentence of the statute, stated IC 14-2-6-3 provides a dual protection from liability for landowners who permit their land to be used by others for recreational purposes. The first sentence of the statute relates to injuries caused by the condition of the land, while the second sentence relates to injuries which are caused by acts of a recreational user. Id.

IC 14-2-6-3 applies to persons going onto the premises of another "to hunt, swim, trap camp, hike, sightsee, or for any other purposes,...." Sledding is an activity of the same kind or class as those specifically...