Clipp v. Weaver
Decision Date | 12 August 1983 |
Docket Number | No. 883S295,883S295 |
Parties | Mary CLIPP, et al., Appellants (Plaintiffs below), v. Charles WEAVER, et al., Appellees (Defendants below). |
Court | Indiana Supreme Court |
William Wagner, Wagner, Cunningham, Vaughan & McLaughlin, Tampa, William J. Cohen, Slabaugh, Cosentino, Walker & Shewmaker, Elkhart, for appellants.
James H. Pankow, South Bend, for appellee, Charles Weaver.
Plaintiffs Mary Clipp, individually, and Ruth Joanne Clipp, Administratrix of the Estate of Gerald Clipp, filed suit against defendant Charles Weaver in the Kosciusko Circuit Court. The court entered summary judgment in favor of defendant, and plaintiffs appealed. The Court of Appeals, Fourth District, reversed the judgment and remanded the cause for trial. Clipp v. Weaver, (1982) Ind.App., 439 N.E.2d 1189. In so doing, the court held that the standard of care a boat operator owes to his guest is one of reasonable care. Id. at 1193. Because this holding conflicts with the decision by the United States Court of Appeals for the Seventh Circuit in McDonnell v. Flaharty, (1980), 636 F.2d 184 (applying Indiana law), we are granting Weaver's petition to transfer to resolve the conflict and therefore vacate the opinion of the Court of Appeals. However, we have carefully examined Judge Conover's excellent opinion and believe he is absolutely correct in his approach to the law regarding the operation of watercraft. Thus, we adopt much of the language from Judge Conover's opinion in resolving the following issue: What standard of care does a boat operator owe to his guest?
Judge Conover summarized the facts of the case as follows:
We first note the standard used to review a summary judgment:
The trial court found there was no genuine issue of material fact because the defendant, Weaver, owed only a duty "not to willfully, wantonly or recklessly" injure his guest. It appears the trial court relied on McDonnell in reaching this decision. The Court of Appeals determined that this reliance was erroneous and that the proper standard was that of reasonable care. The Court of Appeals construed Ind.Code Sec. 14-1-1-16 (Burns 1981 Repl.) to reach this result.
On transfer, Weaver argues that statutory construction is inappropriate because the limited, common law liability of social hosts is judicially created. He would have this Court apply Indiana's common law on host-licensee liability for property owners to boat operators. He also rather incongruously argues that, because the legislature has made no limited guest passenger liability provision in the watercraft statute, Ind.Code Secs. 14-1-1-1 to 63, the statute does not apply in this situation. Weaver argues that the court in McDonnell correctly analyzed Indiana's common law and public policy and correctly determined that Indiana would apply a willful and wanton standard of care to boat operators in order to promote hospitality. 636 F.2d 186-87. We disagree.
Indiana does allow limited liability to property owners when the host-guest (or licensee) relationship exists. See Blake v. Dunn Farms, Inc., (1980) Ind., 413 N.E.2d 560; Neal v. Home Builders, Inc., (1953) 232 Ind. 160, 111 N.E.2d 280; Barbre v. Indianapolis Water Co., (1980) Ind.App., 400 N.E.2d 1142; Xaver v. Blazak, (1979) Ind.App., 391 N.E.2d 653. However, Indiana common law has distinguished premises from conveyances. In Munson v. Rupker, (1925) 96 Ind.App. 15, 148 N.E. 169, the court said:
Id. at 29-30, 148 N.E. 173-74 (emphasis added).
As the McDonnell court noted, Munson led to the enactment of our motor vehicle guest statute, Ind.Code Sec. 9-3-3-1 (Burns 1980 Repl.), which invokes the willful and wanton standard. 1 The legislature has not extended this standard to boats, however, and we see no reason to make a judicial extension of the rule.
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