Dunifon v. Iovino

• Decision Date: 10 May 1996
• Docket Number: No. 02A04-9511-CV-450,02A04-9511-CV-450
• Citation: 665 N.E.2d 51
• Parties: Jack K. DUNIFON and Jean C. Dunifon, Appellants-Defendants, v. Anthony Philip IOVINO, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 51

665 N.E.2d 51

Jack K. DUNIFON and Jean C. Dunifon, Appellants-Defendants, v. Anthony Philip IOVINO, Appellee-Plaintiff.

No. 02A04-9511-CV-450.

Court of Appeals of Indiana.

May 10, 1996.

Rehearing Denied July 10, 1996.

Robert L. Hartley, Jr., Shanda K. Beach, Deborah A. Mastrian, James W. Johnson, Henderson, Daily, Withrow & DeVoe, Indianapolis, for appellants.

Robert Owen Vegeler, Shane P. Lee, Beers, Mallers, Backs & Salin, Fort Wayne, for appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Defendants-Appellants Jack K. Dunifon and Jean C. Dunifon ("the Dunifons") appeal from the trial court's denial of their motion for summary judgment and grant of partial summary judgment finding that Plaintiff-Appellee Anthony Philip Iovino ("Iovino") was an invitee to whom the Dunifons owed the duty of reasonable care.

We affirm.

ISSUES

The following consolidated re-stated issues are presented for our review:

1. Whether the trial court erred when it determined as a matter of law that Iovino was an invitee.

2. Whether the trial court erred when it denied the Dunifons' motion for summary judgment finding that the Dunifons owed Iovino the highest duty of care and breach of that duty is a material issue.

3. Whether the trial court erred in finding that the Dunifons owned, possessed and controlled the land and the pier on which Iovino was injured.

FACTS AND PROCEDURAL HISTORY

Many of the material facts surrounding Iovino's accident are undisputed. The Dunifons owned a lake cottage on Lake George in Steuben County, Indiana, and often allowed their children and grandchildren to use the cottage and lake to entertain friends. Meredith Dunifon is the Dunifons' high school age granddaughter. With her grandparents' permission, Meredith invited several classmates to the Dunifons' lake cottage for Memorial Day, 1991.

In preparation for the gathering, Meredith's father assisted in preparing a map and directions for Meredith to pass out to her friends at school. Meredith invited several friends, including Ryan Moore. On Memorial Day weekend, then-18 year old Iovino was staying with Moore at the Moore family's lake cottage near Lake George. On Memorial Day, Moore, Iovino and Scott Saunders came to the Dunifons' lake cottage pursuant to Meredith's invitation. Meredith knew Iovino from school, and when he arrived at the party with Moore, Meredith did not ask him to leave. In fact, upon arriving, Meredith's mother provided the group with a snack.

Shortly after the party began, the Dunifons left their property to go shopping at a nearby town; however, Meredith's parents remained on the property. Meredith and her friends enjoyed a day of boating, swimming and knee boarding behind the Dunifons' boat driven first by Meredith, and then by Meredith's father. Following the boating, several of the group went swimming, including Iovino. Without checking the depth of the water, Iovino dove off the end of the Dunifons' pier. ¹ The water was approximately three feet deep and Iovino struck the bottom. He dove with his arms extended over his head, so his arms hit bottom first, followed by his head. Iovino sustained a broken neck which rendered him quadriplegic.

In December of 1992, Iovino filed a premises liability lawsuit against the Dunifons alleging their negligence. The Dunifons denied all material allegations in their answer. Although the Dunifons denied that they owed any duty to Iovino, they admitted that they did not warn Iovino or others regarding the shallow depth of the water, nor did they have any warning or "No Diving" signs posted on their property. In February of 1993, the Dunifons moved for summary judgment asserting that they were entitled to judgment as a matter of law. In support of their motion, the Dunifons designated the following evidentiary material: the pleadings; the affidavit and deposition of Jack Dunifon; the affidavit of Jean Dunifon; and specified portions of Iovino's deposition. Iovino responded by designating several material issues of fact. Iovino designated the following evidentiary material: the pleadings; specified portions of the depositions of Iovino, Jack Dunifon and Meredith Dunifon; the affidavit of Jack Dunifon; and Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment.

STANDARD OF REVIEW

Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind.Trial Rule 56(C); L.K.I. Holdings, Inc. v. Tyner, 658 N.E.2d 111, 118 (Ind.Ct.App.1995), reh'g denied. When filing a motion for summary judgment or a response thereto, the parties shall designate to the court all parts of the pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which they rely for purposes of the motion. Id. Once the movant has sustained its burden of showing that there is no genuine issue of material fact, the burden shifts to the opponent who then must respond by setting forth specific facts showing a genuine issue for trial. Id.

When reviewing the trial court's decision on a summary judgment motion, we stand in the shoes of the trial court. We liberally construe all designated evidentiary material in the light most favorable to the nonmoving party to determine whether there is a genuine issue of material fact for trial. Any doubt as to the existence of a factual issue should be resolved against the moving party. T.R. 56(C); Cowe v. Forum Group, Inc., 575 N.E.2d 630, 633 (Ind.1991). The trial court's grant of summary judgment is clothed with a presumption of validity, and the appellant bears the burden of demonstrating the trial court erred. Rosi v. Business Furniture Corp., 615 N.E.2d 431, 434 (Ind.1993). Summary judgment is rarely appropriate in negligence actions. Kelly v. Ladywood Apartments, 622 N.E.2d 1044, 1046 (Ind.Ct.App.1993), reh'g denied, trans. denied.

DISCUSSION AND DECISION

This premises liability personal injury lawsuit arose when Iovino dove head-first off the dock in front of the Dunifons' lake-front property and was seriously injured. The Dunifons contend that the trial court erred when it denied their motion for summary judgment and granted partial summary judgment in favor of Iovino on the issue of visitor status. Specifically, the Dunifons argue that they are entitled to summary judgment regardless of Iovino's visitor status because they did not breach any conceivable duty owed to Iovino.

I. Premises Liability

The Dunifons contend that the trial court erred when it determined Iovino's visitor status as a matter of law. The law is well-established that a person entering upon the land of another comes upon the land either as an invitee, licensee, or trespasser. Smith v. Syd's, Inc., 570 N.E.2d 126, 132 (Ind.Ct.App.1991), reh'g denied, vacated in part by 598 N.E.2d 1065 (Ind.1992) (citing Barbre v. Indianapolis Water Company, 400 N.E.2d 1142, 1145 (Ind.Ct.App.1980)). The person's status on the land defines the nature of the duty owed by the landowner to the visitor. Smith, 570 N.E.2d at 132. Accordingly, the first step in resolving a premises liability case is to determine the plaintiff's visitor status. The visitor status then defines the duty owed from the landowner to the visitor. A person's status on the land, along with the duty owed, is a matter left for determination by the trial court, not the jury. Smith, 570 N.E.2d at 132 (citing Indiana State Highway Commission v. Daily Express, Inc., 503 N.E.2d 1237, 1239 (Ind.Ct.App.1987)); but see Duffy v. Ben Dee, Inc., 651 N.E.2d 320, 322 (Ind.Ct.App.1995), reh'g denied, trans. denied (whether plaintiff was an invitee or licensee is a question of fact not determinable at summary judgment level). We first determine whether the trial court erred when it determined as a matter of law that Iovino was an invitee to whom the Dunifons owed the duty of reasonable care.

A. The Invitation Test

In Burrell v. Meads, 569 N.E.2d 637 (Ind.1991), reh'g denied, our supreme court undertook a comprehensive review of premises liability law in Indiana. The court formally adopted the "invitation test" as the analytical framework for deciding which visitors will be afforded invitee status. Burrell, 569 N.E.2d at 642. Using the adopted framework, the court announced three categories of individuals entitled to "invitee" status when on an occupant of land or landowner's property: the public invitee, the business visitor, and the social guest. Id. A social guest is one who enters an occupier or landowner's property pursuant to "an express or reasonably implied invitation." Id. at 643. As our supreme court said in Burrell, "the invitation itself must be the first step of any inquiry into invitee status." Id. at 642.

B. Application of Burrell

In the present case, Meredith and her father prepared directions to the Dunifons' lake cottage which Meredith passed out to several of her classmates at school. The following facts are undisputed: Meredith expressly invited Ryan Moore to the Dunifons' lake cottage for Memorial Day; Meredith was acquainted with Iovino from school; Iovino was spending Memorial Day weekend with Ryan Moore and his family at their lake cottage on a nearby lake; on Memorial Day, Iovino and Scott Saunders came to the Dunifons' lake cottage with Moore, pursuant to Meredith's invitation to Moore. While it is disputed whether Meredith expressly invited Iovino, this disputed factual issue is not material to the outcome of this litigation. A fact is material if its existence facilitates the resolution of an issue involved. Baxter v. Galligher, 604 N.E.2d 1245, 1247 (Ind.Ct.App.1992). We can say with confidence that the undisputed facts establish that, at the very least, Iovino was at the Dunifons' lake cottage under a reasonably implied invitation. See Smith, 570 N.E.2d 126, "implied invitee" issue adopted and incorporated by reference by Smith v. Syd's, Inc., 598 N.E.2d 1065....