Borton v. Lavenduskey

• Citation: 486 N.E.2d 639
• Decision Date: 23 December 1985
• Docket Number: No. 4-485A90,4-485A90
• Parties: James BORTON, Linda Borton, and Robert Ackley, Appellants (Plaintiffs Below), v. Jack LAVENDUSKEY and Violet Lavenduskey, Appellees (Defendants Below).
• Court: Court of Appeals of Indiana

Page 639

486 N.E.2d 639

James BORTON, Linda Borton, and Robert Ackley, Appellants (Plaintiffs Below), v. Jack LAVENDUSKEY and Violet Lavenduskey, Appellees (Defendants Below).

No. 4-485A90.

Court of Appeals of Indiana Fourth District.

Dec. 23, 1985.

James J. Olson, Mishawaka, for appellants.

Edward N. Kalamaros, Thomas Cohen, Edward N. Kalamaros & Associates Professional Corp., South Bend, for appellees.

CONOVER, Judge.

Plaintiff-appellant, James Borton (Borton) appeals an order granting summary judgment favoring defendants-appellees Violet Lavendusky, and Violet Lavendusky as successor in interest to Jack Lavendusky (Lavenduskys) in a personal injury action arising from Borton being kicked by the Lavenduskys' steer.

We reverse.

ISSUE

The sole issue raised here is whether the trial court erred in granting the Lavenduskys' motion for summary judgment.

FACTS

Borton has been a farm hand on the Ackley dairy farm in North Liberty for 10 years. On June 15, 1982, he as a volunteer went with his employer, Robert Ackley (Ackley) to the Lavenduskys' neighboring farm to load some of the Lavenduskys' cattle onto a trailer for marketing.

The trailer was divided into front and back sections separated by a center gate. Borton's job was to open that gate so some of the cattle could reach the front section. After it was full, Borton was to close the gate to keep the cattle placed there in place, so as to maintain the trailer's balance while the cattle were in transit.

While loading the cattle, Borton noticed a particular steer was "acting a little nervous." While guiding the steer to the front section, he partially turned his back. While Borton was so positioned, the steer kicked him in the knee. Borton sustained tendon and ligament damage.

Borton stated in his deposition he was an experienced cattleman who had been around steers most of his life. Years earlier he had been kicked by another steer, knew they could kick when nervous or when placed in confined areas. Borton also testified he knew the Lavenduskys' steer was nervous before it kicked him, but was not warned by the Lavenduskys the steer was more prone to kick than their other steers until after the incident.

The Lavenduskys moved for summary judgment under Trial Rule 56, claiming there was (a) no genuine issue of material fact, and (b) Borton incurred the risk of getting kicked by the nervous steer as a matter of law. The trial court granted their motion.

DISCUSSION AND DECISION

Borton claims the trial court's grant of summary judgment was contrary to law, claiming conflicting inferences can be gleaned from these facts as to whether he had actual knowledge of the specific risk he incurred while loading the steer which kicked him. Namely, he claims the Lavenduskys knew the steer in question had a greater tendency to kick than the average steer, but failed to warn him of that fact until after the incident. We agree with Borton's contention summary judgment was granted improvidently in this case.

SUMMARY JUDGMENT

Summary judgment is appropriate only when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Creighton v. Caylor-Nickel Hospital, Inc. (filed November 13, 1985), 484 N.E.2d 1303, 1305-1306.

When reviewing the grant of a motion for summary judgment we stand in the shoes of the trial court. Lafary v. Lafary (1985), Ind.App., 476 N.E.2d 155, 158. We must liberally construe all evidence in favor of the nonmovant and resolve any doubts as to the existence of a genuine issue against the proponent of the motion. Kahf v. Charleston South Apartments (1984), Ind.App., 461 N.E.2d 723, 729. Summary judgment may not be used as a substitute for trial to resolve factual disputes. Even if the trial court believes the nonmoving party will not be successful at trial, where material facts conflict or conflicting inferences are possible from undisputed facts, summary judgment should not be entered. Grimm v. Borkholder (1983), Ind.App., 454 N.E.2d 84, 86.

INCURRED RISK

In the present case, the trial court held Borton incurred the risk as a matter of law. This holding was based on Borton's deposition statement he was familiar with cattle and their general tendencies; they could kick when nervous or when placed in confined areas; and the Lavenduskys' steer was acting a little nervous.

The doctrine of incurred risk is based upon the proposition one incurs all ordinary and usual risks of an act upon which he voluntarily enters, so long as those risks are known and understood by him, or could be readily discernible by a reasonable and prudent man under like or similar circumstances. Stallings v. Dick (1965), 139 Ind.App. 118, 210 N.E.2d 82, 88. In Stallings, supra, the court quoted Pierce v. Clemens (1943), 113 Ind.App. 65, 46 N.E.2d 836 for the proposition

"Where the evidence on the question of assumed or incurred risk presents an issue of fact, that issue is for the jury, but where there is no real dispute in the evidence bearing on that question, it is for the court to say as a matter of law that the plaintiff assumed or incurred that risk." (Emphasis in original).

In Power v. Brodie (1984), Ind.App., 460 N.E.2d 1241, 1243, Judge Ratliff further defined the doctrine of incurred risk, stating:

It involves a mental state of venturousness on the part of the actor, and demands a subjective analysis into the actors actual knowledge and voluntary acceptance of the risk. By definition ... the very essence of incurred risk is the conscious,...