Douglass v. Irvin

• Decision Date: 29 January 1990
• Docket Number: No. 64S03-9001-CV-77,64S03-9001-CV-77
• Citation: 549 N.E.2d 368
• Parties: Earl A. DOUGLASS and Carrie A. Douglass, Husband and Wife, Appellants (Plaintiffs Below), v. Floyd S. IRVIN, Appellee (Defendant Below).
• Court: Indiana Supreme Court

Page 368

549 N.E.2d 368

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

No. 64S03-9001-CV-77.

Supreme Court of Indiana.

Jan. 29, 1990.

William S. Suarez, Portage, for appellants.

Ronald P. Kuker, Mark E. Schmidtke, Hoeppner Wagner & Evans, Valparaiso, for appellee.

DICKSON, Justice.

In this property-owner liability case, defendant-appellee Floyd S. Irvin seeks transfer following an adverse decision of the Court of Appeals reversing the grant of summary judgment in his favor. Douglass v. Irvin (1988), Ind.App., 531 N.E.2d 1214. We grant transfer, vacate the decision of the Court of Appeals, and affirm the grant of summary judgment.

In 1980, Irvin added a hot tub room to his house. There were two entrances to the room: french doors from the interior of the house and a sliding glass door from the outside patio. Between the patio door and the hot tub was a line of potted plants, the tops of which were approximately fourteen to sixteen inches high. Shortly after the hot tub room was completed, Irvin showed it to plaintiff-appellant Earl Douglass. On the evening of April 22, 1984, police officers investigated a burglar alarm at Irvin's house. After finding the patio door unlocked, the police officers contacted Douglass and asked that he join them. Douglass had been listed at the Sheriff's Department for many years as the person to call in the event Irvin's burglar alarm sounded and he was not available. Although Irvin had provided Douglass with a kitchen door key, Douglass arrived without the key. The police asked him to ascertain whether anything was taken and to turn off the alarm. The house was dark due to a power failure. Using the sliding patio door, one officer entered carrying a flashlight. When Douglass followed, he apparently stumbled over a plant and fell into the floor-level hot tub, sustaining injuries.

In its order granting summary judgment, the trial court found that no duty was owed by Irvin. The Court of Appeals reversed, devoting considerable discussion to the "equal or superior knowledge" rule and concluding that summary judgment was inappropriate because the issue of duty involved a mixed question of law and disputed facts. On transfer, the defendant disputes the view of the Court of Appeals that the "equal or superior knowledge" rule is an exception to the duty owed by a landowner to an invitee. The defendant argues that the rule operates to require the plaintiff to provide proof of a landowner's superior knowledge before the duty of care is invoked.

We have long recognized that the tort of negligence is comprised of three elements: (1) a duty on the part of the defendant in relation to the plaintiff; (2) a breach of duty, that is, a failure on the part of the defendant to conform his conduct to the requisite standard of care required by the relationship; and (3) an injury to the plaintiff resulting from that failure. Miller v. Griesel (1974), 261 Ind. 604, 308 N.E.2d 701. Generally, a landowner has a common law duty to exercise care to keep his property in a reasonably safe condition for business invitees. Sowers v. Tri-County Telephone Co. (1989), Ind., 546 N.E.2d 836; Hammond v. Allegretti (1974), 262 Ind. 82, 311 N.E.2d 821.

The question of whether a duty to exercise care arises is governed by the relationship of the parties and is an issue of law within the province of the court. ¹ Gariup Const. Co. v. Foster (1988), Ind., 519 N.E.2d 1224; Miller, 261 Ind. 604, 308 N.E.2d 701; Neal v. Home Builders, Inc. (1953), 232 Ind. 160, 111 N.E.2d 280, reh'g denied, 232 Ind. 207, 111 N.E.2d 713. If a duty of care exists, the determination of whether a breach of duty occurred is a factual question requiring an evaluation of the landowner's conduct with respect to the requisite standard of care. It is in this factual assessment that the issue of the landowner's and the invitee's comparative knowledge becomes relevant.

Varying approaches can be seen as courts have wrestled with the issue of a landowner's liability for harm to an invitee from risks known, or reasonably knowable, to an invitee. A substantial body of earlier cases precluded liability for unsafe conditions of land unless the owner or possessor had knowledge thereof superior to that of the invitee. See generally 62 Am.Jur.2d, Premises Liability Secs. 68-71 (1972); Annotation, Modern Status of the Rule Absolving a Possessor of Land of Liability to Those Coming Thereon for Harm Caused by Dangerous Physical Conditions of Which the Injured Party Knew and Realized the Risk, 35 A.L.R.3d 230 (1971). However, the presently prevailing view departs from this absolute rule and is expressed in Sections 343 and 343 A(1) of the Restatement (Second) of Torts (1965):

Section 343

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. [emphasis added]

Section 343 A

(1) A possessor of land is not liable to his invitees for physical harm caused to them by an activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. [emphasis added]

See also Prosser, Handbook of the Law of Torts Sec. 61, at 393-95 (4th ed. 1971). This Court has recently held that the duty of a commercial business toward its customers is "not extinguished by the knowledge of its customers concerning potential risks on the premises." Get-N-Go, Inc. v. Markins (1989), Ind., 544 N.E.2d 484, 487.

While the comparative knowledge of landowner and invitee is not a factor in assessing whether the duty exists, it is properly taken into consideration in determining whether such a duty was breached. Separate evidence of disparate knowledge is not required to prove the existence of duty. However, facts showing only that a landowner knows of a condition involving a risk of harm to an invitee, but could reasonably expect the invitee to discover, realize, and avoid such risk, may be insufficient to prove breach of the duty.

For purposes of analysis of breach of duty, a landowner's knowledge is evaluated by an objective standard. This is in contrast to the determination of the defense of incurred risk, wherein the invitee's mental state of venturousness (knowledge, appreciation, and voluntary acceptance of the risk) demands a subjective analysis of actual knowledge. Beckett v. Clinton Prairie School Corp. (1987), Ind., 504 N.E.2d 552; Power v. Brodie (1984), Ind.App., 460 N.E.2d 1241; Kroger Co. v. Haun (1978), 177 Ind.App. 403, 379 N.E.2d 1004. Thus, factual circumstances may exist in which a court may find that a landowner's failure to take precautions or to warn may constitute a breach of duty because it was reasonably foreseeable that the invitee could suffer harm...