City of Bloomington v. Kuruzovich

• Decision Date: 28 December 1987
• Docket Number: No. 4-985,4-985
• Citation: 517 N.E.2d 408
• Parties: CITY OF BLOOMINGTON, Appellant, v. Richard KURUZOVICH, Appellee. A 262.
• Court: Indiana Appellate Court

Page 408

517 N.E.2d 408

CITY OF BLOOMINGTON, Appellant, v.Richard KURUZOVICH, Appellee.

No. 4-985 A 262.

Court of Appeals of Indiana Fourth District.

Dec. 28, 1987.

David L. Ferguson, Ferguson Ferguson & Lloyd, Bloomington, for appellant.

W. Brent Gill, Law Offices of Roger L. Pardieck, Seymour, for appellee.

MILLER, Presiding Judge.

Richard Kuruzovich filed this personal injury action against the City of Bloomington alleging Bloomington negligently designed and maintained the softball field where he was injured.The case was venued to the Brown Circuit Court, where it was tried to a jury.The jury returned a verdict in favor of Kuruzovich in the amount of $82,000.00, and the court entered judgment on the verdict.Bloomington appeals, and we affirm.¹

FACTS

On May 4, 1982, Richard Kuruzovich, by vocation a hod carrier and by avocation an avid amateur athlete, went to the Sherwood Oaks Park to practice with his softball team.When he arrived another team was using the softball field, so Kuruzovich and his teammate Kevin Coates warmed up by playing catch outside the first base line.Coates threw the ball high over Kuruzovich's head so Kuruzovich could practice chasing down fly balls.Kuruzovich ran after the ball; when he was almost under it he turned to backpedal the last few steps.As he backpedalled he tripped over a manhole cover which stood approximately nineteen feet from the ball field, and which was approximately nine inches above ground level.Kuruzovich fell flat on his back.He was able to continue practice for awhile, but was forced to quit when his back began to tighten.

When his back problems did not subside, Kuruzovich consulted with a chiropractor and an orthopedic surgeon.Their examinations revealed he suffered from a spondylitis--a cracked vertebra--and a grade one spondylolisthesis--a slipped disk--as well as some soft tissue damage.Although treatment improved Kuruzovich's condition to some extent, he was unable to continue working as a hod carrier and was forced to accept employment at substantially lower wages.

Sherwood Oaks Park was originally developed by Korn Parchies, Inc. as part of the Sherwood Oaks subdivision of Bloomington.At the time of Kuruzovich's accident Korn Parchies, Inc. was defunct; it had been involuntarily dissolved by the state because it had not engaged in business activities for a substantial period.Eugene Rubeck and Bill Brown, the owners of Korn Parchies, apparently retained title to the park after Korn Parchies dissolved, but they intended to donate the park to Bloomington when it would be advantageous for them to do so for tax purposes.

Bloomington did not own the park, but it did enter a written lease in the park which ran from January 1, 1976 through December 31, 1981.During this lease, Bloomington mowed the park, removed the trash, and generally maintained the park.Bloomington continued to maintain the park after the expiration of the lease.

The manhole which caused the accident was part of a sewer system originally built by Korn Parchies as part of the Sherwood Oaks subdivision.The sewer was dedicated to Bloomington long before the accident.There is evidence the ball diamond was installed by Bloomington during the period of the written lease.

ISSUES

Bloomington raises multiple issues for our review, which we restate as follows:

1.Did Bloomington retain any interest in Sherwood Oaks Park, or did Bloomington retain any control over Sherwood Oaks Park, sufficient to render Bloomington liable for Kuruzovich's injuries sustained in the park?

2.Was Kuruzovich an invitee, or mere licensee, when he entered the park?

3.Is Bloomington immune from liability under either the Tort Claims Act, IND.CODE 34-4-16.5 or the Recreational Use Statute, I.C. 14-2-6-3?

4.Did the trial court err in refusing to give certain jury instructions tendered by Bloomington?

5.Did the trial court err in finding sufficient evidence to send the case to the jury?²

DECISION

ISSUE 1: Control of the Park as a Basis for Liability

We first turn to the question of whether Bloomington retained control over Sherwood Oaks Park as a tenant or in some other manner.In premises liability cases, we must determine who controlled the property upon which the injury occurred, because "[t]he thread through the law imposing liability upon occupancy of premises is control."Great Atlantic & Pacific Tea Co. v. Wilson (1980), Ind.App., 408 N.E.2d 144, 150.The reasons the law imposes liability on the person who controls the property is self-evident: only the party who controls the land can remedy the hazardous conditions which exist upon it and only the party who controls the land has the right to prevent others from coming onto it.Thus, the party in control of the land has the exclusive ability to prevent injury from occurring.

Bloomington argues it did not control the premises because it did not own the park and because the written lease had expired.Kuruzovich argues Bloomington was a holdover tenant and retained control over the park because a tenancy at will resulted, or, alternatively, regardless of whether Bloomington had a leasehold in the premises, that it exercised de facto control over the park.We agree with Kuruzovich that Bloomington remained a tenant at will after the expiration of the written lease and, consequently, that Bloomington controlled the park at the time of Kuruzovich's injury.

Generally, when a tenant holds over past the term of his lease, the lease is renewed.Speiser v. Addis (1980), Ind.App., 411 N.E.2d 439.The renewed lease contains the same terms, and is subject to the same conditions, as the original lease.Myers v. Maris(1975), 164 Ind.App. 34, 326 N.E.2d 577.When the original lease was for more than one year, the renewal lease is from year to year.Speiser, supra;Burdick Tire & Rubber Co. v. Heylmann(1923), 79 Ind.App. 505, 138 N.E. 777.

Here, Bloomington entered into a written lease which expired December 31, 1981.While the lease was in effect, Bloomington listed Sherwood Oaks Park as a Bloomington city park, mowed the park, and removed the trash from the park.The evidence indicates Bloomington continued to mow and remove the trash after the written lease expired.Bloomington continued to claim the park as a Bloomington park after the written lease had expired.These actions were sufficient to establish Bloomington held over after the termination of the written the lease.Because Bloomington held over, the written lease is deemed to have renewed for the year.Thus, Bloomington controlled the park and is liable for Kuruzovich's injuries.³

Bloomington argues there could have been no extension of the lease, even one arising out of its own actions in holding over, because it was prevented from assenting to a lease extension without the approval of the Bloomington Parks Board.In making this argument, Bloomington relies on I.C. 36-10-4-20, which reads, in relevant part:

"(a) Real and personal property may be granted, devised, leased, bequeathed, or conveyed to a city for park purposes ...

(b) The city may take and hold the property in trust or upon conditions that are approved by the [park] board.The property and the rents, issues, and profits from it are subject to the exclusive control of the board."

We find this statute did not prevent Bloomington from renewing the lease by holding over.The statute does not state that the Parks Board approval is a precondition to a city taking or renewing any interest in land.Rather, the statute states that if a city seeks to take an interest in land, the Parks Board is charged with the duty to establish the conditions under which the city will take the interest.In this case, when the Bloomington Parks Board negotiated and approved the written lease, it determined the conditions under which Bloomington should take an interest in Sherwood Oaks Park.In holding over, Bloomington merely chose to continue under the conditions originally set by its Parks Board.

Even if we were to find the statute required Parks Board approval for Bloomington to renew the lease by holding over, we would not reverse here.Bloomington cites Rieth-Riley Construction Co. v. Town of Indian Village(1966), 138 Ind.App. 341, 214 N.E.2d 208, for the proposition that, in order to shield its municipal corporations from liability, Indiana requires them to follow certain formalities when they contract.However, Kuruzovich rightly notes the Rieth-Riley court refused to absolve Indian Village of liability in that case because the town received the benefits of the contract but sought to use a formality to avoid its obligations under the contract.Here, Bloomington actually controlled the premises and received the benefits of operating Sherwood Oaks Park, but now seeks to avoid the liabilities of controlling and of operating the park.We do not believe either the case law or the public policy of this State would countenance such an inequitable result.

ISSUE 2: Kuruzovich's Status: Invitee or Licensee?

Bloomington notes that Indiana still adheres to the common law categories of invitee, licensee, and trespasser for determining the extent of the defendant's liability in premises liability cases.Joseph v. Calvary Baptist Church (1986), Ind.App., 500 N.E.2d 250;Barbre v. Indianapolis Water Co. (1980), Ind.App., 400 N.E.2d 1142.If Kuruzovich was an invitee when he entered Sherwood Oaks Park, Bloomington owed him a duty of reasonable care under all the circumstances, and he merely would have to prove Bloomington was negligent in order to recover.Joseph, supra;Barbre, supra.If, however, Kuruzovich was a licensee, Bloomington only owed him a duty to refrain from willfully and wantonly injuring him, and he could not recover by proving mere negligence.Gaboury v. Ireland Road Grace Bretheren (1983), Ind., 446 N.E.2d 1310;Joseph, supra;Barbre, supra.

Bloomington cites Joseph and Mullins v. Easton(1978), 176 Ind.App. 590, 376 N.E.2d 1178...