Brown v. Kujawa

• Decision Date: 07 March 1968
• Docket Number: No. 2,No. 20748,20748,2
• Citation: 142 Ind.App. 310,234 N.E.2d 509
• Parties: Betty BROWN, Appellant, v. Steven Edward KUJAWA, b/n/f Shirley Schaffer, and Ronald Brown, Appellees
• Court: Indiana Appellate Court

Page 509

234 N.E.2d 509

142 Ind.App. 310

Betty BROWN, Appellant, v. Steven Edward KUJAWA, b/n/f Shirley Schaffer, and Ronald Brown, Appellees.

No. 20748.

Appellate Court of Indiana, Division No. 2.

March 7, 1968.

James H. Pankow, Jones, Obenchain, Johnson, Ford & Pankow, South Bend, for appellant.

Richard C. Kaczmarek, South Bend, for appellees.

COOK, Presiding Justice.

This is an action for damages for personal injuries instituted on behalf of the minor appellee, Steven Kujawa, by his mother and next friend, Shirley Schaffer, against appellee Ronald Brown and appellant Betty Brown.

The injuries complained of were sustained by Steven Kujawa while playing on a child's playground type slide on the Brown premises. At the time of the injury Steven Kujawa was one day short of five years old.

Betty Brown, the appellant, and Shirley Schaffer are sisters.

On the date the injury occurred, appellant called Steven's mother and asked her if she would drive appellant to a bank in downtown South Bend. Steven's mother agreed that she would do so.

Steven's mother arrived at appellant's premises with Steven and his two brothers to pick up appellant. Mrs. Schaffer had previously determined that she would take Steven and his brothers downtown for lunch.

When appellant and Steven's mother were ready to leave for the bank, Steven's mother told Steven and his two brothers to get into the car. However, appellant's ten year old daughter asked that the boys be allowed to stay for lunch. Mrs. Schaffer asked the boys whether they would rather go downtown or stay with appellant's daughter. With Mrs. Schaffer's approval, they chose to stay with appellant's daughter. While the mothers were away, Steven carried a piece of a broken lawn sprinkler down the slide and in some manner the sprinkler inflicted a laceration to his left eye ball.

Trial was by jury, which returned a verdict in favor of appellee Steven Kujawa and against the appellee Ronald Brown and his wife, the appellant Betty Brown.

Thereafter, Ronald Brown and Betty Brown filed their separate motions for new trial. The trial court granted the motion of Ronald Brown, who is designated here as an appellee; appellee Kujawa has not assigned as cross errors the action of the trial court in granting a new trial to Ronald Brown. The trial court denied the motion of appellant Betty Brown.

The sole assignment of error relied upon in this appeal is the overruling of appellant's motion for new trial.

The primary question presented to this court is whether the appellee, Steven Kujawa, was an invitee or licensee upon the Brown premises at the time of the accident, and consequently, what duty was owed him by the appellant.

The trial court instructed the jury that Steven was an invitee as a matter of law and that appellant owed him a 'duty of reasonable, ordinary care to have and keep the premises in a safe and suitable condition'.

The trial court refused instructions tendered by the appellant which would have instructed the jury that Steven was a licensee, and that the appellant was thus, 'under no duty of care * * * except to abstain from inflicting intentional, wanton or wilful injury * * *'.

These actions by the trial court are included as specifications of error in appellant's motion for new trial. We are of the opinion that the trial court erred in instructing the jury that Steven Kujawa was an invitee. The court should have instructed the jury that he was a licensee.

A licensee is one '* * * who, for his own convenience, curiosity, or entertainment, goes upon the premises of another by his (the owner's or occupant's) permission or sufferance.'...