Bell v. Horton
| Decision Date | 22 October 1980 |
| Docket Number | No. 2-879A232,2-879A232 |
| Citation | 411 N.E.2d 648 |
| Parties | Virgie M. BELL, Appellant (Plaintiff Below), v. Minnie HORTON, Appellee (Defendant Below). |
| Court | Indiana Appellate Court |
Joseph A. Zappia, Frederick S. Bremer, Indianapolis, for appellant.
Cory Brundage, Ice, Miller, Donadio & Ryan, Indianapolis, for appellee.
Plaintiff-appellant Virgie Bell appeals the adverse grant of summary judgment in a negligence suit against her mother, defendant-appellee Minnie Horton. Bell, in her complaint, sought recovery of money damages for injuries she sustained from a fall on Horton's sidewalk. Horton moved for summary judgment arguing that Bell was a licensee to whom no duty of care was owed. Bell, in her primary argument on appeal, disputes Horton's contention that she occupied Horton's land as a mere licensee, arguing that her relationship with Horton and the purpose of her visit created a genuine issue of material fact as to her status, i. e., whether she was a licensee or an invitee. Because we find no genuine issue of material fact, we conclude that summary judgment was properly granted and we affirm.
The facts in evidence, when construed in favor of Bell, show that on April 8, 1973 at approximately 4:00 p. m., Bell, intending to visit her mother, Minnie Horton, slipped and fell when the heel of her shoe became caught in a crack or defect in Horton's sidewalk. As a result of the fall, Bell fractured her ankle and suffers recurring problems with her leg.
The granting of a motion for summary judgment is appropriate ".... if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Ind.Rules of Procedure, Trial Rule 56(C). Because the burden is on the proponent of the motion to show that no genuine issues of fact exist, in deciding whether to grant a summary judgment motion facts set forth in the opponent's affidavit are taken as true, and depositions, admissions, answers to interrogatories, and testimony are liberally construed in favor of the opponent. Swanson v. Shroat, (1976) Ind.App., 345 N.E.2d 872, 874.
Bell argues that testimony contained in her deposition which was filed with the trial court created a genuine issue of fact as to whether she was an invitee or licensee. However, because Bell's deposition was not published, it could not be considered by the trial court in ruling on the summary judgment motion; nor can it be considered by this court in reviewing the grant of summary judgment. Augustine v. First Federal Savings & Loan Association, (1979) Ind., 384 N.E.2d 1018. As in Augustine, no motion to publish the depositions was ever filed; no stipulation by the parties of the contents of the deposition was filed; and no affidavit by the trial court verifying the deposition's contents was filed in the record. Again like Augustine, facts from the deposition which are found in Bell's brief in opposition to the summary judgment motion were not properly before the court absent verification by affidavit. A brief is not a pleading, deposition, admission, answer to interrogatories or affidavit within the meaning of TR. 56. Apple v. Apple, (1971) 149 Ind.App. 529, 274 N.E.2d 402, 409. Similarly, the statement of facts contained in Bell's appellate brief based on testimony from the unpublished deposition cannot be considered by this court on appeal. Shuee v. Gedert, (1979) Ind.App., 395 N.E.2d 804 n. 1; Board of Trustees of Firemen's Pension Fund v. State ex rel. Hyatt, (1941) 221 Ind. 110, 46 N.E.2d 595. Consequently, the only facts which the trial court could consider in deciding the motion for summary judgment were those found in the pleadings and an affidavit filed by Horton in support of the motion. Bell filed no opposing affidavit. In Horton's affidavit she states that Bell, her daughter, was invited upon the premises as a social guest. Bell's complaint itself alleged that she was "intending to visit" Horton when the accident occurred. Thus, excluding the testimony contained in the unpublished deposition, the evidence is uncontroverted that Bell was a social guest of Horton when she fell.
Bell nonetheless contends that her status as licensee or invitee remains in genuine issue. She argues that the statement made by Horton in her affidavit that Bell was a social guest would, because it is opinion regarding an ultimate...
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