Gaboury v. Ireland Road Grace Brethren, Inc.
| Decision Date | 26 October 1982 |
| Docket Number | No. 3-1081A278,3-1081A278 |
| Citation | 441 N.E.2d 227 |
| Parties | Daniel J. GABOURY, Appellant-Plaintiff, v. IRELAND ROAD GRACE BRETHREN, INC., and City of South Bend, Appellees-Defendants. |
| Court | Indiana Appellate Court |
J. Christopher Warter, Michael A. Dvorak, South Bend, for appellant-plaintiff.
John R. Obenchain, South Bend, for appellee-defendant Ireland Road Grace Brethren, Inc.
John E. Doran, David T. Ready, South Bend, for appellee-defendant City of South Bend.
At approximately 1:00 o'clock A.M. Daniel Gaboury was riding a Kawasaki 350 motorcycle home via Glenlake Drive in South Bend, Indiana. He intended to turn onto Coral Drive, but he missed the turn. One hundred fifty feet after Coral Drive, Glenlake Drive terminates into the driveway of the Ireland Road Grace Brethren Church. Gaboury decided to turn around in the driveway of the church. He did not know that ten feet up the driveway a cable was stretched across it. He was injured when he struck the cable.
Gaboury sued Ireland Road Grace Brethren, Inc. and the City of South Bend to recover for his injuries and damages. They filed motions for summary judgment, and the trial court granted both summary judgments.
On appeal, Gaboury contends that the trial court erred when it granted the summary judgments.
We reverse.
The purpose underlying the summary judgment procedure is to terminate those causes of action which have no factual dispute and which may be determined as a matter of law. This procedure is an aid in eliminating undue burdens upon litigants and exposing spurious causes. However, the summary judgment procedure must be applied with extreme caution so that a party's right to the fair determination of a genuine issue is not jeopardized; mere improbability of recovery by the plaintiff does not justify summary judgment for a defendant. Bassett v. Glock (1977), 174 Ind.App. 439, 368 N.E.2d 18, 20-21.
The summary judgment procedure is an application of the law to the facts when no factual dispute exists. The party seeking the summary judgment, therefore has the burden to establish that there is no genuine issue as to any material fact. Any doubt as to a fact, or an inference to be drawn therefrom, is resolved in favor of the party opposing the motion for summary judgment. Poxon v. General Motors Acceptance Corp. (1980), Ind.App., 407 N.E.2d 1181, 1184.
A fact is material if its resolution is decisive of either the action or a relevant secondary issue. Lee v. Weston (1980), Ind.App., 402 N.E.2d 23, 24. The factual issue is genuine if it can not be foreclosed by reference to undisputed facts. That is, a factual issue is genuine if those matters properly considered under Ind.Rules of Procedure, Trial Rule 56 evidence a factual dispute requiring the trier of fact to resolve the opposing parties' differing versions. Stuteville v. Downing (1979), Ind.App., 391 N.E.2d 629, 631.
Although TR. 56 permits the introduction of affidavits, depositions, admissions, interrogatories and testimony to aid the court in the resolution of the motion for summary judgment, the procedure involved is not a summary trial. Bassett v. Glock, supra. In determining whether there is a genuine issue of material fact, the court considers those facts set forth in the opposing party's affidavits as true, and liberally construes the products of discovery in favor of the opposing party. And finally, all pleadings, evidence, and inferences therefrom are viewed in the light most favorable to the opposing party. Poxon v. General Motors Acceptance Corp., supra. In reviewing a grant of summary judgment, this Court uses the same standard applicable to the trial court. Richards v. Goerg Boat & Motors, Inc. (1979), Ind.App., 384 N.E.2d 1084, 1090. (Trans. denied ) We must reverse the grant of a summary judgment motion if the record discloses an unresolved issue of material fact or an incorrect application of the laws to those facts. Id.
Gaboury argues that the City of South Bend negligently placed the lighting of the street. He argues that the City had the duty to sufficiently light the end of the street so that he could have determined where the street terminated and the church driveway began. He stated the following in his affidavit in opposition to summary judgment:
Gaboury testified in his deposition as follows:
The City of South Bend argues that Gaboury's deposition establishes that he saw that the street ended and that the driveway began; therefore he was aware he was on the church property. The granting of the motion of South Bend for summary judgment may not be based upon the facts set forth in Gaboury's deposition because Gaboury's affidavit appears to contradict his deposition. Only the trier of fact may choose which of Gaboury's statements to believe or disbelieve; neither the trial court nor the Court of Appeals may assess witness credibility on a motion for summary judgment. The facts in Gaboury's affidavit are considered to be true. 1 Poxon, supra. The trial court erred in granting South Bend's motion for summary judgment.
The trial court granted the motion for summary judgment of the Church by stating in part:
"[T]he plaintiff [Gaboury] entered upon the defendant's [Church] premises for his own convenience and as a mere licensee at the time and place alleged and as such took the defendant's premises as he found them; this defendant had a right to exclude others from its property; the affirmative duty of the defendant to the plaintiff at the time and place alleged was to refrain from willfully or wantonly injuring him or acting in a manner to increase the licensee's peril..." (Brackets added.).
On appeal, Gaboury seems to argue that the trial court erred in its application of the law to the facts most favorable to Gaboury. He seems to argue that when the Church strung the cable to close off the driveway from the public it created a trap or pitfall; therefore, the Church did have a duty to warn him that the driveway was no longer open to the public. The law regarding the duty of an owner or occupant of land to licensees coming on the premises was set forth by this Court in Fort Wayne National Bank v. Doctor (1971), 149 Ind.App 365, 272 N.E.2d 876. This case generally states that a licensee takes the land of the owner as he finds it. However, certain exceptions to this general rule do exist. Indiana has recognized the entrapment-trap-pitfall exception. Id., Swanson v. Shroat (1976), 169 Ind.App. 80, 345 N.E.2d 872, 877. This exception presumes that people usually avoid obvious dangers and need not be warned of an obvious danger; hidden defects or dangers, such as traps, pitfalls, or obstructions can not be avoided if the licensee does not know of them. Therefore, if the owner or occupant of the land (licensor) knows of a hazard and that the hazard is concealed, he has a duty to adequately warn the licensee of the trap. 2 Swanson, supra; Strelecki v. Firemans Insurance Company of Newark (1979), 88 Wis.2d 464, 276 N.W.2d 794, 797. The licensor must give reasonable notice or warning to licensees if he does any positive act creating a new concealed danger. Frederick v. Reed (1982), Ala.Civ.App., 410 So.2d 95, 97. The danger must be highly dangerous to life and limb; it inheres in the instrumentality or condition itself such that special precautions are required to be taken to prevent injury. Bichsel v. Blumhost (1968), Mo.App., 429 S.W.2d 301, 306.
There are no fixed rules for determining whether a condition of the premises is dangerous and is a trap; the facts and surrounding circumstances of each particular case will control. Calhoun v. Royal Globe Ins. Co. (1981), La.App., 398 So.2d 1166, 1168. This is a question of...
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Beresford v. Starkey
...any positive act creating a new concealed danger." Gaboury, 446 N.E.2d at 1315 quoting but vacating Gaboury v. Ireland Road Grace Brethren, Inc. (1982), Ind.App., 441 N.E.2d 227, 231. Although a landowner who strung cable across a path after discovering motorcycle riders owed such trespasse......
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Gaboury v. Ireland Road Grace Brethren, Inc.
...as to both defendants and therefore the trial court erred in granting the motions for summary judgment. Gaboury v. Ireland Road Grace Brethren, Inc., (1982) Ind.App., 441 N.E.2d 227. We find the Court of Appeals to be in error; therefore, we grant transfer, vacate the opinion of the Court o......