Douglass v. Irvin

• Decision Date: 27 December 1988
• Docket Number: No. 64A03-8802-CV-47,64A03-8802-CV-47
• Citation: 531 N.E.2d 1214
• Parties: Earl A. DOUGLASS and Carrie A. Douglass, Husband and Wife, Appellants (Plaintiffs Below), v. Floyd S. IRVIN, Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 1214

531 N.E.2d 1214

Earl A. DOUGLASS and Carrie A. Douglass, Husband and Wife Appellants (Plaintiffs Below), v. Floyd S. IRVIN, Appellee (Defendant Below).

No. 64A03-8802-CV-47.

Court of Appeals of Indiana Third District.

Dec. 27, 1988.

William S. Suarez, Portage, for appellants.

Ronald P. Kuker, Mark E. Schmidtke, Valparaiso, for appellee.

STATON, Judge.

This is a negligence action brought by Carrie A. and Earl A. Douglass for injuries Earl Douglass received as the result of a fall which occurred at the home of Floyd S. Irvin. Summary judgment was entered in the Porter Superior Court in favor of Irvin, from which the Douglass' now appeal. The issues presented for this court's review are:

1. Whether the trial court erred in ruling that no duty was owed by Irvin where the undisputed facts showed Douglass to be an invitee?

2. Whether Douglass was contributorily negligent as a matter of law?

Reversed.

The evidence favoring the non-moving party shows that Floyd Irvin (Irvin) purchased a residence in Valparaiso, Indiana in 1971. Earl Douglass (Douglass) had done handiwork for the previous owner and continued to do the same for Irvin. In 1980, Irvin added a room to the east side of his house which was designed both as a greenhouse and as a hot tub room.

There were two entrances to the hot tub room: french doors leading in from the interior of the house and a sliding door leading out to the patio. The hot tub was situated in the center of the room at floor level. Between the patio door and the hot tub was a line of potted plants, the tops of which were approximately 14 to 16 inches high. In order to utilize the patio door as a means of ingress or egress, the plants had to be stepped over. Shortly after the hot tub room was completed, Irvin showed it to Douglass.

On April 22, 1984, two Porter County police officers received a call at 9:15 p.m. to report to the home of Irvin in response to an alarm at Irvin's residence. After finding the patio door unlocked, the police officers contacted Earl Douglass and asked that he join them at the house. Douglass had been listed at the Porter County Sheriff's Department for many years as the only person to call in the event Irvin was not available when his burglar alarm went off.

Upon his arrival, Douglass was asked by the police to enter Irvin's residence to ascertain whether anything was taken and turn off the alarm. The parties entered the residence through the patio door leading to the hot tub room. The house was dark due to a power failure and the parties had only one flashlight between them. One officer entered the hot tub room first carrying the flashlight followed by Douglass and the other officer. When Douglass walked into the hot tub room, he apparently stumbled over a plant and fell into the floor-level hot tub, sustaining injuries.

In entering summary judgment in favor of Irvin, the trial court stated that no duty was owed by Irvin, and that no genuine issue of material fact existed which would preclude summary judgment. This appeal ensued.

Summary judgments are properly granted in cases where no issue of material fact exists and which may be determined as a matter of law. Indiana Rules of Procedure, Trial Rule 56. When reviewing a grant of summary judgment, we determine whether an issue of material fact exists and whether the trial court correctly applied the law. Creighton v. Caylor-Nickel Hospital, Inc. (1985), Ind.App., 484 N.E.2d 1303, 1306, trans. denied. All evidence must be construed in favor of the non-movant and all doubts as to the existence of a material issue must be resolved against the movant. Raymundo v. Hammond Clinic Assoc. (1983), Ind., 449 N.E.2d 276, 280. Summary judgment is also inappropriate where conflicting inferences arise from undisputed facts. Board of Aviation Commissioners of St. Joseph County v. Hestor (1985), Ind.App., 473 N.E.2d 151. However, the trial court's ruling must be affirmed on any sustainable theory or basis found in the record. Lawson v. Public Service Company of Indiana (1986), Ind.App., 493 N.E.2d 815, 817 trans. denied.

In the case at hand, Douglass alleged Irvin was negligent in failing to maintain his home in a reasonably safe condition for invitees and by failing to warn of the dangers involved. In order to recover on a theory of negligence, Douglass must establish that Irvin owed him a duty, that Irvin breached that duty, and that Irvin's breach was the proximate cause of the injuries or losses for which Douglass seeks damages. Flott v. Cates (1988), Ind.App., 528 N.E.2d 847, 848.

There is no dispute over Douglass' status as an invitee at the time and place of his injury. An invitee or business invitee is one who enters the land of another,

"... with the express or implied invitation of the owner or occupant, either to transact business with such owner, or occupant, or to do some act which is of advantage to him (the owner or occupant) or of mutual advantage to both licensee and the owner or occupant of the premises. An invitation is implied from such a mutual interest."

Standard Oil Company of Indiana, Inc. v. Scoville (1961), 132 Ind.App. 521, 175 N.E.2d 711, 713, trans. denied; citing Cleveland, etc., R. Co. v. Means (1915), 59 Ind.App. 383, 104 N.E. 785, reh. denied.

Clearly, under the facts and circumstances presented by the record before us, Douglass occupied the status of an invitee. Douglass went to Irvin's home at Irvin's invitation to do so in the situation presented, acting to the advantage of Irvin alone. The concomitant duty owed by Irvin to Douglass as an invitee is the duty to keep his property in a reasonably safe condition, which duty includes the duty of warning an invitee of latent or concealed perils not known to the invitee. Downham v. Wagner (1980), Ind.App., 408 N.E.2d 606, 610, trans. denied.

Irvin does not dispute that Douglass' status was that of an invitee, but rather focuses his argument on Douglass' alleged equal or superior knowledge of the dangers involved in entering the hot tub room at the time his injury occurred.

Both parties to this action have focused much attention on whether an exception to the imposed duty owed by a landowner to an invitee applies in this case. The exception states that, where an invitee is possessing of knowledge equal or superior to that of the landowner of the hazard causing his injury, the landowner is relieved of any duty which might have otherwise been imposed. Wingett v. Teledyne Industries, Inc. (1985), Ind., 479 N.E.2d 51, 54. Douglass argues that this exception applies only where an independent contractor/employer relationship exists. Irvin argues that this is a general rule of negligence law, applicable to all invitor/invitee relationships.

While it is true that the "equal or superior knowledge" rule most often is applied in cases involving independent contractors, its application is not necessarily limited to those cases. See Clark v. City of Huntington et al (1920), 74 Ind.App. 437, 127 N.E. 301. We have previously stated, without limiting our discussion to independent contractor situations, that:

In general statement, the accepted rule is expressed that the duty to exercise care to keep the property in a reasonably safe condition for invitees or business visitors thereon is coextensive with the invitation. The general statement just referred to encompasses the attending considerations that the duty of the inviter, and his corresponding liability for breach of duty, depends upon the circumstances surrounding the invitation, including the character of the premises the invitee is invited to use, the nature of the invitation, the conditions under which it is extended, and the use of the premises to be made by the invitee. The basis of liability of the inviter for failing to render the premises reasonably safe for the invitee must be predicated upon the superior knowledge of the inviter of the dangers of the premises.

Hoosier Cardinal Corporation v. Brizius (1964), 136 Ind.App. 363, 199 N.E.2d 481, 487, trans. denied. (Citations omitted.)

The facts most favorable to Douglass (the non-movant) on the question of his awareness of the perils of using the patio door of Irvin's home as a means of ingress show a dispute not resolvable as a matter of law. Both parties testify in their depositions to the fact that Douglass had been in the hot tub room only once, which occasion was four years prior to his injury. Both parties also stated that...