Beresford v. Starkey, 32A01-8911-CV-450

Citation563 N.E.2d 116
Case DateNovember 20, 1990
CourtCourt of Appeals of Indiana

Richard L. Norris, John M. Choplin, II, Norris, Choplin & Johnson, Indianapolis, for appellants-plaintiffs.

William H. Kelley, James L. Whitlatch, Bunger, Robertson, Kelley & Steger, Bloomington, for appellees-defendants.

RATLIFF, Chief Judge.


Daniel T. and Debra L. Beresford appeal the judgment against them on their action against Richard and Janet Starkey on counts of nuisance and negligence. We affirm.


During the weekend of September 20-21, 1986, Daniel and Debra Beresford attended a party hosted by Richard and Janet Starkey at a cottage on Lake Maxinkuckee. Late on the evening of the 20th, the Starkeys and several of the guests decided to go swimming and all jumped or dived into the water from the end of a dock which stretched over 100 feet out into the lake. The moon was shining and outdoor lights did not reach the water. The water was

murky, as it had been all day. After diving and jumping into the water, the Starkeys and their guests stayed low in the water to stay warm, giving the impression they were treading in deep water, although the depth of the water was only three feet. Although he had been swimming and water skiing in the lake that day, Daniel Beresford had never been swimming off this dock. However, seeing the others in the water, he also dived in. His dive rendered him a quadriplegic

The Beresfords sued the Starkeys for damages, asserting they were negligent in failing to exercise reasonable care to warn Daniel Beresford that it was dangerous, hazardous, and unsafe to dive from the dock into the lake, in concealing the existence of a hidden dangerous condition, and in diving into the lake and crouching down. The Beresfords also requested damages on the basis the dock was a nuisance. The trial court rendered a judgment on the evidence against the Beresfords on their nuisance count and the jury returned a verdict against the Beresfords on their negligence count.


The Beresfords raise five issues which we restate as:

1. Whether the trial court erred in giving instruction No. 6, 1 No. 9, and No. 11, regarding the Beresfords' burden of proof and the Starkeys' duties, and in refusing the Beresfords' tendered instruction No. 5A regarding the Starkeys' duties.

2. Whether the trial court erred in refusing to give the Beresfords' tendered instruction No. 4, regarding the Starkeys' liability, in light of their knowledge and acts or omissions, if a dangerous condition was found by the jury to have existed.

3. Whether the trial court erred in giving final instruction No. 8 which defined incurrence of the risk of injury.

4. Whether the trial court erred in ruling inadmissible testimony by Debra Beresford regarding Janet Starkey's statement that the Starkeys were at fault in causing Daniel Beresford's injury.

5. Whether the trial court properly granted the Starkeys' motion for judgment on the evidence on the nuisance action and properly refused the Beresfords' tendered final instructions No. 7A and No. 8 regarding the burden of proving nuisance and the definition of nuisance.

Issue One

The Beresfords contend the trial court erred in giving final instructions No. 6, 9, and 11, and in refusing their tendered instruction No. 5A. The giving of jury instructions is within the discretion of the trial court. We limit our review to determining whether given instructions were supported by the evidence and were correct statements of the law. No single instruction need contain all the applicable law. We review instructions to see that they are in harmony with each other. Wielgus v. Lopez (1988), Ind.App., 525 N.E.2d 1272, 1274. In addition, when we review a trial court's failure to give a requested instruction, we will find error only if the tendered instruction correctly stated the law, it was supported by the evidence, and its substance was not covered by instructions given. Marathon Petroleum Company v. Colonial Motel Properties, Inc. (1990), Ind.App., 550 N.E.2d 778, 783. Even if a trial court has erred in refusing an instruction, the error is reversible error only if the complaining party's substantial rights have been adversely affected. Board of County Commissioners of County of St. Joseph v. Arick (1985), Ind.App., 477 N.E.2d 112, 114, trans. denied.

Final instruction No. 6 provided:

"The plaintiffs have the burden of proving the following propositions. First, that the defendants were willful and wanton. Second, that the plaintiff, Daniel T. Beresford was injured. Third, that the willful and wanton act of the defendants was the proximate cause of the injury to the plaintiff. If you find from a consideration of all the evidence that the propositions have been proved, then your verdict should be for the plaintiffs. However, if you find from a consideration of all the evidence of all the evidence [sic] that any of these propositions have not been proved or if you find that the plaintiff himself was more than 50 percent at fault, your verdict should be for the defendant."

Record at 932-33. At trial, the Beresfords objected that the instruction: (1) incorrectly stated their burden of proof which they thought was to prove the Starkeys violated a duty of ordinary care, (2) incorrectly covered intentional conduct which was not covered under the comparative fault act, and (3) was incorrect in failing to mention all of the elements supporting the Beresfords' legal theories while at the same time being phrased as mandatory.

Final instruction No. 9 read: "In this case Daniel T. Beresford was a licensee. An occupant of property is under no duty to a licensee until his presence is known or should have reasonably been known. Then the occupant has only the duty of not wilfully [sic] or intentionally causing him injury." Record at 933. The Beresfords assert that, although the instruction was modeled after Indiana Pattern Jury Instruction 25.07, it omitted some optional, but important, qualifying language: "However, when the occupant has actual or constructive notice that a licensee is in a place of danger, he is under a duty to use ordinary care to avoid injuring the licensee." In addition, they contend the use of "only" in No. 9 was misleading in precluding consideration by the jury of other duties which the Beresfords assert the Starkeys had.

Final instruction No. 11 read: "A licensee takes the land as he finds it. The only affirmative duty the defendants owed to the plaintiffs was to refrain from willfully or wantonly injuring them or acting in a way which increase [sic] the plaintiff's peril, [sic] mere negligence is not enough." Record at 934. The Beresfords argue the instruction was incorrect because: (1) it was in conflict with the Restatement (Second) of Torts Sec. 342; 2 (2) it used the word "only" while omitting the duty of a possessor to warn a licensee of concealed dangerous conditions; and (3) it stated that a negligence standard did not apply to the duty of a possessor to refrain from acting in a way which would increase a licensee's peril.

The Beresfords contend the court, instead of giving final instruction No. 11, should have given their tendered instruction No. 5A: "You may find Richard Starkey and/or Janet Starkey were at fault if Richard Starkey and/or Janet Starkey acted in a way which would increase Dan Beresford's peril." Record at 271.

Both parties agree Daniel Beresford was a licensee because he was a social guest of the Starkeys at the time of his accident. See Martin v. Shea (1984), Ind., 463 N.E.2d 1092, 1093. Both parties also agree the Starkeys owed a duty to Beresford: (1) not to willfully or wantonly injure him, see Gaboury v. Ireland Road Grace Brethren, Inc. (1983), Ind., 446 N.E.2d 1310, 1314 and Wright v. International Harvester Co. (1988), Ind.App., 528 N.E.2d 837, 839, trans. denied; (2) to refrain from acting in a way which would increase Beresford's peril, See Gaboury, 446 N.E.2d at 1314 and Burrell v. Meads (1989), Ind.App., 540 N.E.2d 115, 116; and (3) to use reasonable care to warn an unaware licensee of concealed dangerous conditions which are known to the possessor. Wright, 528 N.E.2d at 839.

However, the Beresfords contend the duty to refrain from acting in a way which would increase a licensee's peril is subject to an ordinary care standard. Our supreme court quite clearly stated that a landowner owes a licensee only "the duty of refraining from willfully or wantonly injuring him or acting in a way which would increase the licensee's peril. A showing of ordinary negligence ... would not be sufficient for relief ..." Gaboury, 446 N.E.2d at 1314-15 (citation omitted). We also have held that an occupant's or owner's duty to refrain from acting in a way which would increase a licensee's peril is not subject to an ordinary negligence standard, but is subject to a willful and wanton standard of care. See Burrell, 540 N.E.2d at 116; Kidd v. Davis, 485 N.E.2d 156, 158.

The Beresfords, however, cite Harper v. Kampschaefer (1990), Ind.App., 549 N.E.2d 1067, 1071, trans. denied, which dealt with a trespasser, to support their argument that a possessor has a duty to give a licensee reasonable warning once the possessor has done any positive act to increase a licensee's hazard. Discussing hidden dangers, the court in Gaboury stated that a "licensor must give reasonable notice or warning to licensees if he does any positive act creating a new concealed danger." Gaboury, 446 N.E.2d at 1315 quoting but vacating Gaboury v. Ireland Road Grace Brethren, Inc. (1982), Ind.App., 441 N.E.2d 227, 231. Although a landowner who strung cable across a path after discovering motorcycle riders owed such trespassers a duty of reasonable care not to increase their peril, Harper, 549 N.E.2d at...

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