Hammond v. Allegretti

• Decision Date: 06 June 1974
• Docket Number: No. 674S110,674S110
• Citation: 311 N.E.2d 821,262 Ind. 82
• Parties: Verna HAMMOND, Plaintiff-Appellant, v. M. L. ALLEGRETTI, M.D., et al., Defendants-Appellees.
• Court: Indiana Supreme Court

Page 821

311 N.E.2d 821

262 Ind. 82

Verna HAMMOND, Plaintiff-Appellant, v. M. L. ALLEGRETTI, M.D., et al., Defendants-Appellees.

No. 674S110.

Supreme Court of Indiana.

June 6, 1974.

Saul I. Ruman, Hammond, for plaintiff-appellant.

Robert D. Hawk, Spangler, Jennings, Spangler & Dougherty, Gary, for defendants-appellees.

HUNTER, Justice.

The plaintiff-petitioner filed suit in Lake Circuit Court seeking damages for injuries sustained as a result of a slip and fall upon defendant-respondent, Hammond Clinic's, icy parking lot. The cause was then venued to the Porter Superior Court. Upon defendant's motion, judgment on the evidence was entered by the trial court at the conclusion of plaintiff's case in chief. The Court of Appeals affirmed.

This case presents the following question of law: What duty of care does a landowner-inviter owe to a business invitee with respect to the natural accumulation of ice and snow on the landowner's private parking lot adjacent to his place of business?

The Court of Appeals, per Judge Hoffman, relying primarily on the case of Kalicki, v. Beacon Bowl, Inc. (1968), 143 Ind.App 132, 238 N.E.2d 673, held that a landowner-inviter does not owe a duty to a business invitee to clear the natural accumulation of snow and ice from an open-air parking lot. The Court, however, stated that only if the landowner-inviter 'creates a more dangerous condition than would otherwise be attributable to the natural accumulation of ice and snow will liability be imposed.'

The Court of Appeals summarized the facts of the case as follows:

'On January 4, 1967, there was approximately one inch of snow on the ground and approximately one-half inch of new snow fell. On January 5, 1967 another inch of snow fell. No snow fell on January 6, 1967, however, five hundredths of an inch of rain and snow fell during the morning of January 7, 1967.

'On January 4, 1967, the parking lot of the Hammond Clinic (the defendant herein) had been plowed and salted by R. L. Babcock.

'The plaintiff testified that on January 7, 1967, she drove to the Hammond Clinic accompanied by her husband and two other passengers in the car. She testified that there was ice on the highway but it was not solid. She also testified that there was ice and snow on the whole parking lot. She testified that she parked her car in the parking lot and went into the Clinic. Upon returning to her car she slipped and fell on the ice thereby causing the injuries complained of in this appeal.'

We find the Court of Appeals' decision (and the decision in Kalicki) to be entirely inconsistent with the bedrock principles of occupier's liability. For this reason, we have granted transfer to delineate the proper rule of law and, in so doing, expressly overrule Kalicki.

The duty owed by a landowner-inviter to a business invitee was formulated by the English Court of Common Pleas in the landmark case of Indermaur v. Dames (1866), L.R. 1, C.P. 274, 35 L.J.C.P. 184, aff'm'd. L.R. 2 C.P. 311, 36 L.J.C.P. 181.

'The authorities respecting guests and other bare licensees, and those respecting servants and others who consent to incur a risk, being therefore inapplicable, we are to consider what is the law as to the duty of the occupier of a building with reference to persons resorting thereto in the course of business, upon his invitation, express or implied. The common case is that of a customer in a shop: but it is obvious that this is only one of a class; for, whether the customer is actually chaffering at the time, or actually buys or not, he is, according to an undoubted course of authority and practice, entitled to the exercise of reasonable care by the occupier to prevent damage from unusual danger, of which the occupier knows or ought to know, such as a trap-door left open, unfenced, and unlighted: Lancaster Canal Company v. Parnaby, 11 Ad. & E. 223 (E.C.L.R. vol. 39), 3 P. & D. 162; per cur. Chapman v. Rothwell, E.B. & F. 168 (E.C.L.R. vol. 96), 27 L.J. (Q.B.) 315, where Southcote v. Stanley, 1 H. & N. 247, 25 L.J. (Ex.) 339, was cited, and the Lord Chief Justice, then Erle, J., said: 'The distinction is between the case of a visitor (as the plaintiff was in Southcote v. Stanley), who must take care of himself, and a customer, who, as one of the public, is invited for the purposes of business carried on by the defendant.' This protection does not depend upon the fact of a contract being entered into in the way of the shopkeeper's business during the stay of the customer, but upon the fact that the customer has come into the shop in pursuance of a tacit invitation given by the shopkeeper, with a view to business which concerns himself.

'And, with respect to such a visitor at least, we consider it settled law, that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, which he knows or ought to know; and that, where there is evidence of neglect, the question whether such reasonable care has been taken, by notice, lighting, guarding, or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jury as matter of fact.' (emphasis added) L.R. 1 C.P. at 286, 287.

Indermaur has become a coernerstone of occupier's liability law in all American common law jurisdictions. The Restatement of Torts (Second) § 343 (1965) has incorporated the English rule:

'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)

Dean Prosser characterizes the nature of the landowner's duty vis-a-vis an invitee as follows:

'The occupier is not an insurer of the safety of invitees, and his duty is only to exercise reasonable care for their protection. But the obligation of reasonable care is a full one, applicable in all respects, and extending to everything that threatens the invitee with an unreasonable risk of harm. The occupier must not only use care not to injure the visitor by negligent activites, and warn him of latent dangers of which the occupier knows, but he must also inspect the premises to discover possible dangerous conditions of which he does not know, and take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement or use. The obligation extends to the original construction of the premises, where it results in a dangerous condition. The fact that the premises are open to the public must be taken into account, and will call for greater care than in the case of a visitor at a private home. If the presence of children is to be expected, their meddling propensities must be anticipated; and the principla of 'attractive nuisance' applies to child invitees no less than to trespassers.

'On the other hand there is no liability for harm resulting from conditions from which no unreasonable risk was to be anticipated, or those which the occupier did not know and could not have discovered with reasonable care. The mere existence of a defect or danger is not enough to establish liability, unless it is shown to be of such a character or of such duration that the jury may reasonably conclude that due care would have discovered.' (citations omitted) (emphasis added)

Prosser, Law of Torts (4th ed.) (1971), § 61, p. 392--3.

The venerable Indermaur principle is also firmly imbedded in the decisional law of Indiana--which, to us, makes the Court of Appeals' decisions in this and the Kalicki case all the more remarkable. This Court defined the legal duty owed by a business-landowner to a business-invitee as early as 1884:

'If, however, the owner or occupant of lands, by any enticement, allurement or inducement, causes others to come upon or over his lands, then he assumes the obligation toward persons so coming, to provide a reasonably safe and suitable way for that purpose. An owner may not by invitation, either express or implied, induce another to come upon or pass over his premises, without keeping them in such condition of safety as to admit of his passing over by the means designated or prepared without injury, provided he uses due care. To make the owner or occupant liable for an injury received by one passing over his premises, something more than a mere passive acquiescence in the use of his land by others is necessary. So long as his lands are used by others, be it never so frequent, for their own convenience, he is not liable. But if, by some act or designation of his, persons are led to believe that a way or path over premises was intended to be used by travellers, or others having lawful occasion to go that way, then as to such persons the owner or occupant comes under an obligation to keep it free from dangerous obstructions or pitfalls which might cause them hurt. The inducement must be equivalent to an invitation, either express or implied; mere permission is not sufficient. Carleton v. Franconia Iron and Steel Co., 99 Mass. 216.' (emphasis added)

The Evansville & Terre Haute R.R. Co. v. Griffin, 100 Ind. 221, 223.

See also: Indiana, Bloomington and Western Railway Co., et al. v. Barnhart (1888), 115 Ind. 399, 16 N.E. 121; William, Laurie Co. v. McCullough (1910), 174 Ind. 477, 90 N.E. 1014; East Hill Cemetery Co. of Rushville v. Thompson (1912), 53 Ind.App. 417, 97 N.E. 1036 (landowner owes an affirmative duty to a business invitee).

Judge Emmert, writing for a unanimous court in the case of Robertson Bros. Dept. Store v. Stanley (1950), 228 Ind. 372, 90 N.E.2d 809, cites the following line of authority in support of the...