Carroll by Carroll v. Jagoe Homes, Inc.

• Decision Date: 19 March 1997
• Docket Number: No. 82A05-9608-CV-333,82A05-9608-CV-333
• Citation: 677 N.E.2d 612
• Parties: Jacob CARROLL, by Next Friend and Natural mother, Phyllis CARROLL; Phyllis Carroll, Individually, Appellants-Plaintiffs, v. JAGOE HOMES, INC. and Jagoe Homes and Construction Company, Inc., Appellees-Defendants.
• Court: Indiana Appellate Court

Page 612

677 N.E.2d 612

Jacob CARROLL, by Next Friend and Natural mother, Phyllis CARROLL; Phyllis Carroll, Individually Appellants-Plaintiffs, v. JAGOE HOMES, INC. and Jagoe Homes and Construction Company Inc., Appellees-Defendants.

No. 82A05-9608-CV-333.

Court of Appeals of Indiana.

March 19, 1997.

Transfer Denied Aug.22,1997.

Scott Danks Evansville, for Appellants-Plaintiffs.

Michele S. Bryant, Daniel F. Hewins, Fred S. White,

Evansville, for Appellees-Defendants

OPINION

SHARPNACK, Chief Judge.

Jacob Carroll, by his mother Phyllis Carroll, and Phyllis Carroll, individually (collectively the "Carrolls"), appeal the entry of summary judgment in favor of the defendant-appellees, Jagoe Homes, Inc. ("Homes, Inc.") and Jagoe Homes and Construction Co., Inc. ("Homes & Construction") (collectively the "appellees"). The sole issue raised for our review is whether the trial court properly entered summary judgment. We reverse and remand.

The facts most favorable to the Carrolls, the nonmovants, follow. On September 12, 1993, nine year old Jacob was severely injured in a house under construction by Homes, Inc. The property was owned by Homes & Construction.

On the day of the accident, Jacob, his brother Jesse, and a friend, David Green, went to play in the partially completed house, which was located in the boys' neighborhood. At the time of the accident, Jesse was seven years old and David was ten years old. The boys went to the house because David wanted to show Jacob "something really neat," "something like a hole." Record, pp. 52, 54.

The house had a frame and a roof, but construction workers had neither hung drywall over the insulation nor installed the garage door and the door leading from the garage to the house. The boys entered the house through the garage and immediately climbed the stairs to the second floor. Plywood flooring had been laid throughout the entire second story of the house. The flooring extended about three feet into an attic area over the garage, and the remainder of the attic consisted of beams with insulation between them. The insulation was held up by wire supports and had no flooring underneath.

David and Jacob stepped through an opening into the attic area. The area was not blocked or barricaded. David walked across several beams in the attic, before telling Jacob to follow. Jacob stepped onto the insulation and fell though the joists onto a concrete garage floor below. Jacob sustained severe injuries.

On May 24, 1995, the Carrolls filed an amended complaint for bodily injury against the appellees. On December 13, 1995, Homes, Inc. filed a motion for summary judgment. On December 27, 1995, Homes & Construction filed its motion for summary judgment. On March 19, 1996, the trial court entered summary judgment in favor of the appellees. The Carrolls now appeal.

Standard of Review

When we review the entry of summary judgment, we are bound by the same standard as the trial court. Ayres v. Indian Heights Volunteer Fire Dep't, 493 N.E.2d 1229, 1234 (Ind.1986). We may consider only those portions of the pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters designated to the trial court by the moving party for purposes of the motion. Ind. Trial Rule 56(C), (H); Rosi v. Business Furniture Corp., 615 N.E.2d 431, 434 (Ind.1993). The moving party in a motion for summary judgment bears the burden of making a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Hermann v. Yater, 631 N.E.2d 511, 513 (Ind.Ct.App.1994), reh'g denied. Once the movant satisfies this burden, the burden shifts to the nonmoving party to produce specifically designated facts showing the existence of a genuine issue. Id. Any doubt as to the existence of an issue of material fact, or an inference to be drawn from the facts, must be resolved in favor of the nonmoving party. Cowe v. Forum Group, Inc., 575 N.E.2d 630 633 (Ind.1991). Even if the facts are undisputed, summary judgment is inappropriate where the evidence reveals a good faith dispute as to the inferences to be drawn from those facts. State v. American Motorists Ins. Co., 463 N.E.2d 1142, 1146 (Ind.Ct.App.1984). When the defendant is the moving party, the defendant must show that the undisputed facts negate at least one element of the plaintiff's cause of action or that the defendant has a factually unchallenged affirmative defense which bars the plaintiff's claim. Moore v. Sitzmark Corp., 555 N.E.2d 1305, 1307 (Ind.Ct.App.1990).

A negligence action is rarely an appropriate case for disposal by summary judgment. Frye v. American Painting Co., 642 N.E.2d 995, 998 (Ind.Ct.App.1994). Issues of negligence, causation, and reasonable care are most appropriately left for a determination by the trier of fact. Jump v. Bank of Versailles, 586 N.E.2d 873, 875 (Ind.Ct.App.1992).

Discussion

In their amended complaint, the Carrolls alleged that the appellees were negligent for leaving unsupported insulation in the house. A claim of negligence consists of three elements: (1) the existence of a duty owed by the defendant to the plaintiff, (2) a breach of that duty, and (3) damages or injury proximately caused by the breach of that duty. Mullin v. Municipal City of South Bend, 639 N.E.2d 278, 283 (Ind.1994). The duty owed by a landowner to one entering his property differs according to the status of the entrant as an invitee, licensee, or trespasser. Barbre v. Indianapolis Water Co., 400 N.E.2d 1142, 1145 (Ind.Ct.App.1980).

A trespasser is one who enters the landowner's property without consent, right, or invitation. See Burrell v. Meads, 569 N.E.2d 637, 640 (Ind.1991), reh'g denied. The only duty that a landowner owes to a trespasser is to refrain from willfully or wantonly injuring the trespasser after discovering his presence. Id. at 639.

In this case, Jacob entered the house without permission and, therefore, he was a trespasser. Under the general rule then, the landowner only owed Jacob a duty after discovering his presence. See id. However, two doctrines have been developed which hold a landowner to a duty of reasonable care with respect to children, even when they are trespassers. Lowden by Lowden v. Lowden, 490 N.E.2d 1143, 1144-1145 (Ind.Ct.App.1986), reh'g denied, trans. denied. These two doctrines are the attractive nuisance doctrine and the doctrine of dangerous instrumentalities.

The parties dispute whether either of these two doctrines apply. If neither doctrine applied to the evidence designated to the trial court, then the appellees were entitled to judgment as a matter of law because the Carrolls failed to demonstrate that the appellees breached their duty to Jacob after discovering his presence on the property. See Burrell, 569 N.E.2d at 640. However, because we find that genuine issues of material fact exist as to whether the attractive nuisance doctrine is applicable, we hold that the trial court erroneously entered summary judgment. Further, because summary judgment was erroneously entered as to the attractive nuisance doctrine, we need not reach the issue of whether summary judgment was appropriate as to the dangerous instrumentalities doctrine. Finally, before turning to the attractive nuisance doctrine, we must first consider Homes & Construction's threshold claim that it did not maintain control of the premises and, therefore, that it did not owe any duty to any person coming onto the premises.

Ownership Claim of Homes & Construction

On December 27, 1995, Homes & Construction filed its motion for summary judgment, arguing that it was not in control of the house in which Jacob was injured. Homes & Construction argued that Homes, Inc. was the only party involved with the construction. Homes & Construction designated the affidavit of J. Scott Jagoe, the owner of Homes, Inc., as evidence that Homes, Inc. was the builder of the house where Jacob was injured. Because Homes & Construction was not in control of the premises, it argued that it did not owe a duty to anyone coming onto the premises, including Jacob.

On January 23, 1996, the Carrolls filed their motion, memorandum, and designation of materials in opposition to summary judgment. The Carrolls designated the following materials to the trial court: (1) the amended complaint, (2) Jacob's deposition, (3) Phyllis' deposition, (4) the affidavit of Betty Hermann, the county recorder, and attachments thereto, and (5) the affidavit of Al Folz, the township assessor, and attachments thereto. In their memorandum in opposition to summary judgment, the Carrolls claimed the township records demonstrated that Homes & Construction owned the property on September 12, 1993, the date of Jacob's accident, and that Homes & Construction did not transfer the ownership to Homes, Inc. until November 1, 1993. The Hermann affidavit was filed with the trial court on January 23, 1996, while the Folz affidavit was filed on January 30, 1996. ¹

Only a party who exerts control over the premises owes a duty to persons coming onto the premises. See Risk v. Schilling, 569 N.E.2d 646, 648 (Ind.1991), reh'g denied. The party exerting control over the land, the "possessor of land," is defined as follows:

"(a) a person who is in occupation of the land with intent to control it or

(b) a person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it, or

(c) a person who is entitled to immediate occupation of the land, if no other person is in possession under Clauses (a) and (b)."

Id. at 647 (quoting Restatement (Second) of Torts § 328(E) (1965)).

We find that the designated evidence demonstrates the existence of a genuine issue of material fact as to whether Homes & Construction was a possessor of land to the extent that it owed a duty to Jacob. Although Homes & Construction designated the Jagoe...