Androusky v. Walter

• Decision Date: 30 May 2012
• Docket Number: No. 83A01–1103–CT–137.,83A01–1103–CT–137.
• Citation: 970 N.E.2d 687
• Parties: James ANDROUSKY, II, Individually and as Personal Representative of The Estate of James Androusky, III, Deceased, Appellant, v. Cole A. WALTER and Tammra Androusky, Appellees.
• Court: Indiana Appellate Court

970 N.E.2d 687

James ANDROUSKY, II, Individually and as Personal Representative of The Estate of James Androusky, III, Deceased, Appellant,

v.Cole A. WALTER and Tammra Androusky, Appellees.

No. 83A01–1103–CT–137.

Court of Appeals of Indiana.

May 30, 2012.

David W. Stone, IV, Stone Law Office & Legal Research, Anderson, IN, John P. Nichols, Anderson & Nichols, Terre Haute, IN, Attorneys for Appellant.

Sheila M. Sullivan, Scott P. Sullivan, Flynn & Sullivan, PC, Indianapolis, IN, Attorneys for Appellees.

OPINION

FRIEDLANDER, Judge.

James Androusky II (Father), individually and as personal representative of the estate of James Androusky III (James), filed a child wrongful death action against Cole Walter following the drowning death of James in Walter's residential swimming pool. Father appeals the jury verdict in favor of Walter, presenting the following restated instructional issues:

1. Did the trial court abuse its discretion by instructing the jury to determine whether James was an invitee or licensee?

2. Did the trial court abuse its discretion by instructing the jury regarding abandonment under the Child Wrongful Death Act?

3. Did the trial court improperly instruct the jury regarding a state administrative pool safety regulation?

4. Did the trial court properly instruct the jury on the effect of a parent's failure to supervise his or her child around a known or obvious condition upon the land?

We affirm.

Father and Tamara Androusky (Mother) married right out of high school in 2004. James was the second child born to their marriage, on February 22, 2006. Although the marriage ended in divorce in July 2006, Mother and Father were together on and off again until October 2008. During this time, they had a third child in December 2007. Father never paid the court-ordered support, but he did provide financial support to some extent when he and Mother were together.

Mother married her long-time friend, Matthew Hollingsworth, in August 2006 so that she would have medical insurance to cover a gall bladder operation. Father apparently lived with Mother and Hollingsworth in South Carolina during at least part of this marriage, which ended in April 2007. Mother moved back to Indiana with Father in July 2007. As set forth above, their unstable relationship ended in October 2008, and Mother eventually moved back to South Carolina with the children.

Following a conviction for theft in February 2009, Father drafted a document pursuant to which he attempted to terminate his parental rights to his three children in exchange for Mother's non-enforcement of any child support obligation. Father filed the notarized document, which was signed by Mother and Father, with the Parke Circuit Court on April 23, 2009.

Thereafter, in July 2009, Hollingsworth and Mother planned a trip back to Indiana with the kids. Hollingsworth notified Cole Walter, his former step-father, of the upcoming visit. Walter told Hollingsworth that he would like to see him but that Mother and her children were not welcome. Therefore, Hollingsworth, Mother, and the children initially stayed with Mother's family until they were kicked out due to an argument between Mother and her mother.

Late in the evening on Wednesday, July 22, Hollingsworth arrived at Walter's home with Mother and the children. Walter was already in bed, as he worked very early in the morning. Hollingsworth, Mother, and the three children slept in Hollingsworth's old bedroom. While at work the following day, Walter learned from his live-in girlfriend, Donna Kelly, that Mother and the children had spent the night at his home. He planned to confront Hollingsworth after work, but when he returned home, they were not there. Once again, they arrived that night after Walter went to bed.

Friday afternoon while Kelly and Walter were away, Hollingsworth and Mother had others over for a pool party in Walter's backyard. When Walter arrived home that evening, he was not happy at the scene in his backyard. He immediately confronted Hollingsworth and told him that they had to leave. Hollingsworth agreed to leave but then asked if they could stay just one more night, as he and Mother had nowhere else to go. Walter reluctantly agreed that they could stay until morning, at which time they would “get up, have breakfast, [and] leave”. Transcript at 304.

The next morning, Walter once again left early in the morning for work. The boys awakened Hollingsworth around 8:00, and he got them dressed and took them downstairs for breakfast while Mother continued to sleep. Around 10:30, Mother was still in bed, Hollingsworth was on his laptop, and children were watching cartoons. At some point three-year-old James and his four-year-old brother asked to play outside. Hollingsworth let them out to the backyard through the kitchen door ¹ and periodically checked on them as they played at the bottom of the steps. Shortly thereafter, Mother came downstairs and stepped outside with the boys. Mother came back inside and left the boys unattended in the fenced-in backyard that contained an open, in-ground pool. When Mother eventually returned outside, she did not see James. She yelled for Hollingsworth and then ran around the side of the house and to the front porch. Both she and Hollingsworth then looked in the house for him until it finally occurred to Hollingsworth that he might be in the pool. Hollingsworth immediately ran to the pool, dove in, and found James at the bottom. James was taken off life support the day after the incident when it was determined that he was brain-dead.

Father filed the instant child wrongful death action against Walter on August 19, 2009.² The complaint was based on premisesliability and alleged negligence for lack of fencing between the home and the pool, lack of a safety cover over the pool, and lack of supervision around the pool. Following unsuccessful summary judgment motions by both parties, a jury trial commenced on February 22, 2011. The jury returned a verdict in favor of Walter on March 1, 2011. Father now appeals, challenging a number of instructions given by the trial court.

In reviewing a trial court's decision to give or to refuse tendered instructions, we consider: (1) whether the instruction correctly states the law; (2) whether there was evidence in the record to support the giving of the instruction; and (3) whether the substance of the instruction is covered by other instructions which are given. Franciose v. Jones, 907 N.E.2d 139 (Ind.Ct.App.2009), aff'd on reh'g,910 N.E.2d 862,trans. denied. The trial court has discretion in instructing the jury and will be reversed on the last two above only when the instruction amounts to an abuse of discretion. Id. We, however, review whether an instruction correctly states the law de novo. Id. A party seeking a new trial on the basis of instructional error must show a reasonable probability that the complaining party's substantial rights have been adversely affected. See Dyer v. Doyle, 870 N.E.2d 573 (Ind.Ct.App.2007), trans. denied.

1.

Father initially claims that the trial court abused its discretion by instructing the jury regarding licensee versus invitee status. He argues that there was no evidence presented at trial that James was a licensee and that the undisputed evidence established he was a social guest/invitee. We cannot agree.

A landowner's liability to persons on the premises generally depends on the person's status as a trespasser, licensee, or invitee. See Kopczynski v. Barger, 887 N.E.2d 928 (Ind.2008). While the determination of the duty owed by a landowner is ordinarily a question of law for the court to decide, “it may turn on factual issues that must be resolved by the trier of fact.” Id. at 931.

In Burrell v. Meads, 569 N.E.2d 637 (Ind.1991), our Supreme Court adopted the invitation test as the analytical framework for deciding which visitors will be afforded invitee versus licensee status. Id. at 642 (“the invitation itself must be the first step of any inquiry into invitee status”). Relevant to our discussion here, the Court held that a social guest is entitled to invitee status. A social guest is one who enters the landowner's property pursuant to an “express or reasonably implied invitation.” Id. at 643.

On the other hand, licensees are not invited guests and “enter the land of another for their own convenience, curiosity, or entertainment”. Rhoades v. Heritage Investments, LLC, 839 N.E.2d 788, 791 (Ind.Ct.App.2005), trans. denied. They have a privilege to enter or remain upon the land by virtue of the landowner's “permission or sufferance.” Id. See also Christmas v. Kindred Nursing Ctr. Ltd. P'ship, 952 N.E.2d 872 (Ind.Ct.App.2011).

Thus, in determining a visitor's status, the distinction between invitation and permission becomes critical. Rhoades v. Heritage Inv., LLC, 839 N.E.2d 788. “An invitation differs from mere permission in this: an invitation is conduct which justifies others in believing that the possessor desires them to enter the land; permission is conduct justifying others in believing that the possessor is willing that they shall enter if they desire to do so.” Christmas v. Kindred Nursing Ctr. Ltd. P'ship, 952 N.E.2d at 879 (quoting Restatement (Second) of Torts § 332). “[T]he decisive factor with regard to whether the possessor had extended an ‘invitation’ or ‘permission’ is the interpretation that a reasonable man would put upon the possessor's words and actions given all the surrounding circumstances.” Rhoades v. Heritage Inv., LLC, 839 N.E.2d at 792.

In the instant case, Walter presented evidence indicating that Mother and her children were not expressly or impliedly invited to stay at his home. In fact, Walter made clear that they were not welcome and reluctantly agreed to allow them to stay one night only because Hollingsworth indicated they had nowhere else to go. Under the specific facts of this case, one could reasonably conclude that Mother and her children were not...