Hammond v. Allegretti

• Decision Date: 26 October 1972
• Docket Number: No. 272A112,272A112
• Citation: 288 N.E.2d 197
• Parties: Verna HAMMOND, Plaintiff-Appellant, v. M. L. ALLEGRETTI, M.D., et al., Defendants-Appellees. . *
• Court: Indiana Appellate Court

Page 197

288 N.E.2d 197

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

No. 272A112.

Court of Appeals of Indiana, Third District. ^*

Oct. 26, 1972.

Rehearing Denied Dec. 4, 1972. Opinion Superseded 311 N.E.2d 821.

Saul I. Ruman, Hammond, for appellant.

Robert D. Hawk, Gary, for appellee; Spangler, Jennings, Spangler & Dougherty, Gary, of counsel.

HOFFMAN, Chief Judge.

The sole issue presented by this appeal is whether the judgment on the evidence entered by the trial court in favor of defendants-appellees was proper.

Plaintiff-appellant Verna Hammond filed her complaint against a certain group of physicians doing business as the Hammond Clinic alleging, inter alia, that the defendants-appellees were negligent in one or more of the following ways:

'a. The Defendants failed to exercise reasonable care in maintaining the parking lot in a safe condition.

'b. The Defendants permitted ice and snow to accumulate in the parking lot.

'c. The Defendants failed to remove the ice and snow which had accumulated in the parking lot.

'd. The Defendants failed to warn Plaintiff that the parking lot was unsafe.'

The complaint further alleged that as a result of defendants' negligence the plaintiff was damaged in various ways and prayed for judgment in the amount of $100,000.

The defendants answered denying each allegation contained in plaintiff's complaint. Following a change of venue, a pre-trial conference was held pursuant to TR. 16, Indiana Rules of Procedure, IC 1971, 34--5--1--1. The trial court entered a pre-trial order setting forth certain admitted facts and the contested issues. Trial was to a jury, and at the conclusion of plaintiff's evidence the trial court granted the motion for judgment on the evidence filed by defendants and entered judgment for the defendants. Plaintiff's motion to correct errors was overruled, and this appeal followed.

It has been held that the requisite elements for any negligence action are a duty, a breach thereof and an injury proximately resulting therefrom. Chicago, Indianapolis & Louisville R. Co. v. Carter (1971), Ind.App., 274 N.E.2d 537, 27 Ind.Dec. 445. In reviewing the instant case we are required to consider only the evidence most favorable to the party against whom the judgment on the evidence is sought. Rouch v. Bisig (1970), Ind.App., 258 N.E.2d 883, 21 Ind.Dec. 591 (transfer denied). The judgment on the evidence entered by the trial court may only be affirmed if there is a total absence of evidence or reasonable inferences therefrom in favor of the plaintiff upon the issues. If there is any probative evidence or reasonable inferences drawn from the evidence, or if the evidence is such that the minds of reasonable men might differ, then the judgment on the evidence is improper.

Hendrix v. Harbelis (1967), 248 Ind. 619, 623, 230 N.E.2d 315; Whitaker, Admr. v. Borntrager (1954), 233 Ind. 678, 680, 122 N.E.2d 734.

The facts of the instant case most favorable to the plaintiff may be summarized from the facts admitted by the parties as set forth in the pre-trial order and from the testimony contained in the record before us 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 one 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 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.

A person coming onto business premises for the purpose of doing business therein is generally said to be an invitee or licensee by invitation. In Robertson Bros. Dept. Store v. Stanley (1950), 228 Ind. 372, 90 N.E.2d 809, the plaintiff slipped on snow and slush that had been tracked inside the store. At 378 of 228 Ind., at 811 of 90 N.E.2d, it was stated:

"While it is recognized that the proprietor of a store is not burdened by law with any unusual degree of care for the safety of customers, and in that regard is required only to exercise ordinary care to keep his store in a reasonably safe condition, and is not an insurer of the safety of his customers, nevertheless, he must maintain it in such manner as not to cause injury to one lawfully entering the store for the purpose of making purchases.' Great Atlantic & Pacific Tea Co. v. Custin, 1938, 214 Ind. 54, 59, 13 N.E.2d 542, 544, 14 N.E.2d 538. 'Invitation, whether express or implied, imposes the duty to use ordinary care that the place of invitation be reasonably safe for the invitee.' Silvestro v. Walz, 1943, 222 Ind. 163, 170, 51 N.E.2d 629. 'This duty is an active, continuous one. It owed her the duty of protection against injury through negligent acts of its employees.' Sears, Roebuck & Co. v. Peterson (CCA 8th) 1935, 76 F.2d 243, 246. See also J. C. Penney, Inc., v. Kellermeyer, 1939, 107 Ind.App. 253, 19 N.E.2d 882, 22 N.E.2d 899; F. W. Woolworth Company v. Moore, 1943, 221 Ind. 490, 48 N.E.2d 644.'

See also Hollowell et al. v. Greenfield by Next Friend (1966), 142 Ind.App. 344, 216 N.E.2d 537, 8 Ind.Dec. 281 (transfer denied), wherein the owner acquiesced in an eleven-year old child playing around industrial equipment; Hickey etc. v. Shoemaker (1960), 132 Ind.App. 136, 167 N.E.2d 487 (transfer denied), wherein the plaintiff fell on snow-covered porch of funeral home; Rouch v. Bisig, supra, wherein the plaintiff was injured in diving unaware into shallow water; and Huttinger v. G. C. Murphy Company (1961), 131 Ind.App. 642, 172 N.E.2d 74 (transfer denied), wherein the plaintiff fell on water inside the business premises.

The general rules as above set forth are not applicable in Indiana where the injuries complained of resulted from the natural accumulation of ice and snow on a parking lot...